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June 15, 2011

Today's Rubashkin Appeal

Rubashkin closeup What to expect from today's oral arguments and what might happen if Sholom Rubashkin loses.

 

The Sholom Rubashkin Appeal
What To Expect From Today's Oral Arguments
Norman Pressman • Special To FailedMessiah.com

I'm attending the appellate hearing today in St. Louis and will provide a short report to FM readers after its over.
 
Today's proceeding in the Eighth Circuit Court of Appeals is an oral argument – no witnesses or evidence will be presented. Each side has filed an exhaustive brief, for Rubashkin claiming legal error at trial, and for the government claiming that there was no error. The argument is set to start at 1:30 pm Saint Louis time.
 
Each side will have 30 minutes to further explain its position although, especially in a high profile case like this, the judges and their law clerks (very smart young lawyers at the top of their classes) will have thoroughly read the briefs and done their own research.
 
Three judges will hear the argument and then issue an opinion, probably sometime in the next few months. There will be no immediate ruling like you see on TV ala People's Court
 
Each side is permitted to have multiple lawyers at the counsel table, but only one lawyer for each side will argue. Rubashkin's counsel will go first, and probably will reserve five minutes to rebut what he government says, and then the session will end. On rare occasions the presiding judge will allow more time.
 
This case is set for the "en banc" or largest courtroom where the entire 12 judges sit if they hear a case as a full court. It's highly unlikely that Rubashkin would be permitted to attend since he is in custody.
 
In some cases oral argument is very important. I've always felt that the lower the level of the Court, where the judge(s) have had less of a time to review the situation or read the brief the more important the oral argument.  Thus the skill of a lawyer arguing a motion to dismiss a lawsuit in a trial court may be more important than the skill of counsel at he Supreme Court.
 
Once the panel issues its opinion the loser can try to have the case heard by the entire twelve judges of the Circuit. This rarely  happens. The main reason for such a re-hearing "en banc" is that a decision of the three judge panel in a case conflicts with another decision in the Circuit – or that the current panel feels that the result decided in a previous case by a different panel was wrong.
 
After that (or if no such petition for rehearing is filed) the only remedy is with the US Supreme Court. Therefore, Rubashkin’s best shot to obtain relief is from the panel hearing arguments today.
 
I'm sure the lawyers among the FM readership will find some fault in my description of what I think will happen today, and also probably with my subsequent report – but I'll try to report objectively even though I think that Rubashkin has been treated fairly and is not a victim of antisemitism, but is instead its cause.
 
Neither my analysis or the opinions of Rubashkin’s supporters, even if they pack the courtroom, will make any difference – it’s up to the panel of judges hearing Rubashkin’s appeal, and right or wrong, their word here probably will be final.

Editor's note: I believe Rubashkin has two possibilities for relief – a new trial or a new sentence. If the appellate court orders a new sentence, it can send that responsibility to the original trial judge, Chief Judge of the Northern Iowa circuit, Linda Reade, who originally sentenced Rubashkin; or it can send it to another judge. Norm will correct me if I'm wrong when he posts later today.

Comments

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B"H

More than 10% of US Congress members have sent letters to US ATTORNEY GENERAL ERIC HOLDER expressing concern for the extreme sentence, conduct of judge Reade as far as ex parte communications, etc.

There is only one true Judge and IY"H he will see to it that SMR is home with his family soon and for rest of his life till 120.

Thank you Norman.

Looking forward to your report later today.

I"m now off to join the tefillah gathering on behalf of SMR.

"Leiv melochim vesorim beyad Hashem" and we all daven that he will soon rejoin his family in good health.

Thanks, again, to Norman.

What may be interesting to observe is the body language of the judges. I've always believed Judge Reade handed down a "rulebook verdict" due to the litigious nature of the defendents. If the judges seem interested in the argument that the sentence is excessive, the sentencing guidelines may need to be tweaked.

You all should understand a thing or two. Rubashkin was tried and sentenced very fairly. This is not a high profile case, the only people interested is the Chabad community and the people Rubashkin screwed.
The 10% of congress that you claim wrote letters to Holder only did so because they have an interest in obtaining votes from the orthodox community.
Please let this be the end of Rubashkin. Everyone knows, that anti-semitism, at least in part, is brought on by the ultra-orthodox.

Whillie, your comment shows that you are clueless and ignorant about the case. I don't know whether this has much to do with anti-Semitism, but I do know that the judge is cruel and did not treat him the way he should be treated in a free country in the 21st century. I reviewed some of her other rulings and they follow the same pattern. She sentences convicts so heartlessly and with such cruelty, that it boggles the mind that this can happen "legally" in the U.S. in 2011. This development exposes "one of many" flaws in our current legal system. It is sad that a single judge or even the entire judicial branch is given so much power - there is a lack of sufficient checks and balances.
Assuming that the guilty verdict was reached fairly and without any biases, the sentencing is way too excessive. The United States should never lock someone up for almost their entire life because of lying on a loan application especially when there was never intent to rob the bank or commit larceny. IT IS CRUEL AND UNUSUAL PUNISHMENT for the crime [ALLEGEDLY] committed. And let me make this clear - this is not only about Mr. Rubashkin, it's a general flaw with the criminal code of the United States these days.
Even to have a law on the books that if someone bribes a public official with $5000, he can get 20 years in prison, that's medieval and insane. Luckily 99% of judges will never hand down sentences like that - but being that it's on the books even, gives a judge like Reade a "legal" green light to hand down such a sentence leaving her VICTIMS, let me repeat yes convicted felons who are "her VICTIMS" locked up for decades for relatively minor infringements of the law. This cruel behavior ought to be condemned by all civilized human beings. Such actions hurt everyone and are not in the best interest of the citizens of this great country.

It's known that all anti semitism started when jews assimilate not when they fit in. And by the way we will never fit in.

Also to the author of this article, you think he was judged fairly, A. ExPlain the sentence to me

The United States should never lock someone up for almost their entire life because of lying on a loan application especially when there was never intent to rob the bank or commit larceny. IT IS CRUEL AND UNUSUAL PUNISHMENT for the crime [ALLEGEDLY] committed.

You have no idea what you're talking about.

Sholom Rubashkin guaranteed millions of dollars worth of loans with non-existent accounts receivable and inventory. He also laundered money to hide it from his lenders. This bank fraud stretched back into the 1990s, long before the raid. And the ponzi scheme (so to speak) Rubashkin was running would collapsed even without the raid, probably by early 2009. And that would have put Sholom Rubashkin in the same court, facing the same charges, and then in federal prison with the same sentence.

Lenders lost millions of dollars because of Sholom Rubashkin's lies.

The banking system relies on these crimes being strongly punished. If they are not, the cost of loaning money would rise exponentially and the availability of money to load would dramatically shrink.

Even to have a law on the books that if someone bribes a public official with $5000, he can get 20 years in prison, that's medieval and insane.

Public corruption is corrosive. It destroys democracy. And it should be punished accordingly.

Luckily 99% of judges will never hand down sentences like that - but being that it's on the books even, gives a judge like Reade a "legal" green light to hand down such a sentence leaving her VICTIMS, let me repeat yes convicted felons who are "her VICTIMS" locked up for decades for relatively minor infringements of the law. This cruel behavior ought to be condemned by all civilized human beings. Such actions hurt everyone and are not in the best interest of the citizens of this great country.

Judge Reade is one of the toughest sentencing judges in the country. But to say 99% of judges never hand down sentences like her is simply false. The guidelines she follows, arguably too closely, were adopted by Congress and any departure from them must be justified by the judge in the sentencing memorandum and must cite law to support it.

The light sentences you talk about are overwhelmingly sentences given to defendants who have accepted a plea bargain, part of which requires accepting and acknowledging one's own guilt – which is itself a mitigating factor that allows a sentence to be reduced.

If Judge Reade is to be faulted for anything, it should be for the comparatively stiff sentences she gives defendants who accept plea bargains. That is where her sentences seem to be extraordinary.

The bottom line is that Sholom Rubashkin broke the law – a lot of laws, actually.

He has never tried to make restitution. He has never apologized to those he defrauded or accepted his own guilt. He has shown nothing but contempt for the American legal system.

All of those things work against mitigation.

Also to the author of this article, you think he was judged fairly, A. ExPlain the sentence to me

Posted by: Me | June 15, 2011 at 08:12 AM

Please read my previous comment.

The US Sentencing Guidelines called for a 22 to 30 year sentence for Rubashkin's crimes.

He got 25, plus two extra for perjuring himself (lying) in court.

It's known that all anti semitism started when jews assimilate not when they fit in. And by the way we will never fit in.

Also to the author of this article, you think he was judged fairly, A. ExPlain the sentence to me

Posted by: Me | June 15, 2011 at 08:12 AM

interesting comment maybe you can back it up with facts and maybe even a study.

Or is this just wishful thinking why you stay religious

To Shmarya:

I rarely see anyone claiming he is totally innocent. The question has always been whether the punishment fits the crime.

And your comment that the banking system relies heavily on stiff penalties for bank fraud: So if you think 10 years in prison is not stiff enough then you simply don't get it and I give up debating this further.

And regarding your comment about public corruption: You are again missing the point, we are not saying to ignore or allow corruption - we are questioning the SEVERETY of some of the guideline penalties. For example everyone agrees that running a red light is very dangerous and can kill someone. According to your logic anyone who does such a truly terrible thing as passing a red light should be sentenced to 20 years in prison. You might as well just put barbed wire from coast to coast and just let out the 10% or less of the population who have never driven a mile over the speed limit etc.

Regarding judge Reades sentencing, you are right I was referring to the plea bargains. Those sentenceing memorendums show her true color, charachter and nature. It is mind boggling that our legal system can allow someone like her sit on the bench and get away with her actions. I don't even know where to pinpoint the blame for this, it's just obvious that something is wrong with the system.

And what about the "convicted" murderers who turn out to be innocent based on DNA testing decades into serving long prison sentences? Doesn't that scream that something is wrong with the system. I do not proclaim to have answers to all of these problems - but they are very serious issues. Of course noone thinks about it when it's "someone else" - but if it were you being the defendant then you would see the unfairness and injustices.

And what about the "convicted" murderers who turn out to be innocent based on DNA testing decades into serving long prison sentences?

You're right. No prison sentences for convicted murderers! /s

And your comment that the banking system relies heavily on stiff penalties for bank fraud: So if you think 10 years in prison is not stiff enough then you simply don't get it and I give up debating this further.

Again, it used to be that bank fraud got lighter sentences, as did other financial crimes.

But after Enron and slew of similar frauds, all the penalties for these crimes were increased due to public demand.

And what about the "convicted" murderers who turn out to be innocent based on DNA testing decades into serving long prison sentences? Doesn't that scream that something is wrong with the system.

Halakha talks about this very problem.

When a beit din had circumstantial evidence that murderer was guilty, but did not have 2 kosher witnesses, it confined the murderer to a cage or cell, and withheld food and water from him.

If the murderer died, then his death was considered to be at the hand of God, who after all could have provided the person with food and water of he were innocent.

The point, which you completely miss, is that no legal system is perfect, not even the Torah's legal system.

But we are still commanded to follow the law and uphold those systems.

I guess you should lock up people for life if they are "convicted" based on testimony of any moron raising their right hand on a bible, despite such convictions having been proven wrong too often with DNA testing. Great judgement!

Did you ever study the Talmud how evidence and testimony are verified and scrutinized before issuing a harsh ruling?

Noone is advocating a free for all society. We just need to review our currect criminal statutes and make corrections to the flaws in the system so that justice is administered fairly and equally and our punishments are given in the right amount - not too lenient and not too harsh. No need to get so excited.

PETH,
WE live in America, not JewLand.

Obey the Constitution and the laws of the USA. Don't like our legal system? Find another country and go move there.

And who is Noone? Why is an Irishman advocating a free for all society?

"Did you ever study the Talmud how evidence and testimony are verified and scrutinized before issuing a harsh ruling?"

Did you ever study anything more than Gemara? Try a little Shulchan Aruch. Maybe Choshen Mishpat, Siman 2 - then you will see what kind of power courts have, even batei din. All the requirements of hilchos eidus mean is that if those requirements are met, there is no way out, and the evidence becomes the Truth. If the strict requirements of drisha and chakira are not met, well the dayanim have a lot of wiggle room. They can disregard the evidence, or, if the circumstantial evidence is convincing, they can convict/hold liable the defendant anyway - and meet out punishments well in excess of what the Torah allows.

Please learn a bit before bringing halacha into the discussion. If Judge Reade had been a dayan on a bais din (and had been a man) she would be wholey justified in meting out the sentence she did.

Shlomo, You are a complete ignoramus who reads – in English – some translation of a few paragraphs in shulchan aruch and then parading himself as a scholar in Halach.

the truth is nothing further that what you stated. You obviously never leaved these halochos thoroughly.

Yes, you got the talking points right, but ONLY the talking points, with no substance.

Posted by: levi | June 15, 2011 at 02:23 PM

You're wrong, Levi. You don't know what you're talking about.

I've written about this many times.

Shlomo is correct.

And I should point out, levi, that to anyone who knows halakha, you look like fool.

Sorry Levi. My rov who oversees my preparations for receiving smicha yadin yadin would agree with you.

BTW, since you seem to know, please enlighten me as to where there is any word-for-word translation of Tur or Shulchan Aruch Choshen Mishpat, especially hilchos dayyanim. I don't beleive it exists - certainly not with bias yosef, bach, prisha, drisha, sma, shach, taz, urim v'tumim, and shaar hamishpat, and the sources cited by the pischei teshuva.

Please check those sources on siman beis and get back to me when your done - its a fair 2 weeks worth of work.

Shmaya....i know that the crime can receive that many years, but please show me cases where somone scamed 20 million dollars and got so many years in jail!!!!

about assimilation, look at history, its an obvious study, it's known when the jews try to blend in they loose, Purim, Chanukah etc. Hashem took us out of eygpt b/c we kept our identities...come on.
go to the holocaust, the jews that 'fit in' were spared????
The more we give in with israel the more violence and hate comes our way, not more tolerance and love and acceptance. If we want to be accepted we have to be a person with a backbone!!!

Shlomo,

I would advise your “rov who oversees my preparations for receiving smicha yadin yadin” to take these words of our sages into account. (there is much much more)

אמר ריש לקיש כל המעמיד דיין שאינו הגון כאילו נוטע אשירה בישראל...

אמר ר' זעירא: מכאן שלא ישנה אדם לתלמיד שאינו הגון

השונה לתלמיד שאינו הגון נופל בגיהינום..

אין מלמדין תורה אלא לתלמיד הגון נאה במעשיו, או לתם (להלן נברר מהי הלשון "או לתם"). אבל אם היה הולך בדרך לא טובה, מחזירין אותו למוטב, ומנהיגין אותו בדרך ישרה, ובודקין אותו, ואחר כך מכניסין אותו לבית המדרש ומלמדין אותו. אמרו חכמים כל השונה לתלמיד שאינו הגון כאילו זרק אבן למרקוליס שנאמר...

שולחן ערוך יורה דעה, רמו, ז: אין מלמדין תורה לתלמיד שאינו הגון, אלא מחזירין אותו למוטב ומנהיגין אותו בדרך ישרה ובודקין אותו, ואח"כ מכניסין אותו לבית המדרש ומלמדין אותו.

ואם אי אפשר להחזירו למוטב תחילה, והוא דוחק להיכנס ללמדו [ללמוד], תהא שמאל דוחה וימין מקרבת, ולא כיהושע בן פרחיה שדחה לפלוני בשתי ידים

please show me cases where somone scamed 20 million dollars and got so many years in jail!!!!

I've done that several times before.

The problem is that you read and believe Chabad and haredi blogs and papers. They lie all the time, and you believe those lies.

Is there anyone in the court room that will give us an update/summery any time soon?

Have a nice day Levi. Your words speak for themselves, I think. No need for a substantive rebuttal.

Shlomo, Most testimony accepted in US courts would be summery rejected by a Kosher Beis Din!

Just for starters, there are criteria for someone to be accepted as a valid witness. If the person is a criminal, who violated laws, he is not accepted.

Many (most?) “government witnesses” in US courts would be invalid in a bais din. If the witness has much to gain from the testimony – a better deal for his own “good deeds”, in many cases, providing the testimony that the prosecutors are seeking, will greatly benefiting the “honest” witness, this a total travesty of justice.

It is the exact same thing as hiring a witness off the street and paying him big buck for his HONEST testimony….

Shlomo, while you may be learning some dayanus, to equate eidus that is acceptable in a real beis din to the US courtroom is totally disingenuous.

levi,

You're an idiot.

You're explaining halakha like a first grader.

You don't have any idea how foolish you look.

Go ask someone with dayanut to explain it to you.

Shmarya, with your complex and in-depth knowledge of Halacha and Torah in general, I would love to sit down with you for several hours and study-argue these issues using ONLY ORIGINAL HEBERW TEXTS. I would like to be impressed by your vast knowledge in these fields ..

Maybe “rabbi” Morris Allen should be there as well. So we can glean some pearls of wisdom from our Holy Torah.

Go ask a dayan, levi. You simply have no idea what you're talking about, and you're embarrassing yourself far more than you'll probably ever be able to understand.

Shmarya, please don’t worry to much about my embarrassment. I have far more knowledge in these maters – from the CLASIC, original texts than you will ever have (along with Moris Allen, Robert Weisler etc etc.). no hard feeling. You can probably put me “in your back pocket” when it comes to some secular maters. It’s quite simple: people are usually knowledgeable in fields they study.

Just because I read a book on medicine, that doesn’t qualify me as a doctor and I would never claim to understand medicine better then a doctor just because I read 1-2 articles on-line.

Right on, Shmaryah !!!

Besides, there is only one "ORIGINAL HEBERW TEXT" that normal Jews should care about - The Law of Moses.

Everything else does not really matter.

I routinely study mishna, Talmud, poskim, shulchan aruch…. No need to read an article on-line

Shmarya, please don’t worry to much about my embarrassment. I have far more knowledge in these maters – from the CLASIC, original texts than you will ever have (along with Moris Allen, Robert Weisler etc etc.). no hard feeling. You can probably put me “in your back pocket” when it comes to some secular maters. It’s quite simple: people are usually knowledgeable in fields they study.

Just because I read a book on medicine, that doesn’t qualify me as a doctor and I would never claim to understand medicine better then a doctor just because I read 1-2 articles on-line.

Posted by: levi | June 15, 2011 at 03:20 PM

A hasid shoteh.

Go talk to a dayan, levi. And then apologize.

Aleksandr Sigalov,

Your wrong, according to Shmarya and other here on FM, they don’t believe that the 5 books of Moses were given by G-d directly to the Jewish people at Mount Sini,

to practicing Jews, the Torah includes both Torah Shebiktav and Torah Sh’Baal Peh – and they have the same validity. Actually did you ever here of this verse? ושמרת לעשות ככל אשר יורוך

and do you know that to traditional, practicing jews this has always been the truth:
ילקוט שמעוני שיר השירים - פרק א - רמז תתקפא על הפסוק בשיר השירים על הפסוק טובים דודיך מיין. אמר רבי שמעון בר אבא חביבים דברי סופרים כדברי תורה שנאמר וחכך כיין הטוב, חבריא בשם ר` יוחנן חמורים דברי סופרים מדברי תורה שנאמר כי טובים דודיך מיין

Shmarya, do you actually know what the term “hasid shoteh” means? And then you worry about my embarrassment…

Yes, levi. I know what it means. I was using it as a double entendre.

Rubashkin may have lied on loan or laundered money but his sentencing does not fit the crime. We have had a family member become a victim of Judge Reade and Stephanie Rose's team. In our case it was a victimless non violent crime and the sentence was completely insane. If these judges allow this to happen, then the US Goverment has more problems than their own financials. Let's look at the former Presidents, the Congressmen and other Politicians who have lied and let's lock them up for 27 years. We can go on and on with a list of recent mistakes made by those people. I can bet Judge Reade has lied at some point in her life. The bottom line, our judicial system is corrupted and it should not be allowed. Judge Reade is suppose to be so smart..then she should have known better and stepped a side on this case. I hope Rubashkin's sentence is changed and I hope Judge Reade is repremanded for her misconduct. Matter of fact.. it is pretty clear that she misrepresented the truth...... She needs to be held accountable.....
People will be lining up to be on the jury for her trial. Let's hope the outcome of this is what it should be.....

Joni & Levi (and others)

No one gives a flying fig or a burning bush what the laws in some other country are. This is America. We have our laws. If you break them, you will go to jail. Deal with it.

This constant talk of how things are done on the fourth moon of jupiter merely demonstrates your arrogance and inability to accept our laws; justification of criminality on the basis of the laws of some other country. Which simply, in itself, demonstrates your (plural, look at the commentary) communal criminality.

Joni

" We have had a family member become a victim of Judge Reade and Stephanie Rose's team. In our case it was a victimless non violent crime and the sentence was completely insane."

That is such a transparent lie. See, you have switche dthe roles, now you are the victim and the naughty judge is the perpetrator. Get a grip. Your beloved family member (who may also be a wonderful family person, philanthropist, rabbi, whatever), was a perpetrator. Evidence before the courts convicted him. He defrauded and injured people, they were the victims. You do not have enough honesty (demonstrated) to judge; the judge is the judge elected by the people of the state, to protect them from criminals like him. The judge heard the case, and sentenced him. not because he is a jew, but because he is a criminal. in this state, in this country.

(I repeat, it does not matter whether he is a criminal by the laws of some other country, he did somethingn criminal here, he made his money here, he was senteced here.)

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