The Rubashkin Appeal: A Report From The Courtroom

Nathan Lewin argued that Judge Reade should have recused herself. The chief appeals judge seemed most interested in the length of sentence issue.

 

Rubashkin Appeal Oral Arguments
Norman Pressman • Special to FailedMessiah.com

The federal courtroom in St. Louis eventually filled to near capacity but was not completely full. The spectators were mostly ultra-Orthodox or Orthodox, but there were also court lawyers and what appeared to be US attorneys there, as well.

Sholom Rubashkin's lead attorney, Nathan Lewin, used almost his entire allotted time on the issue of recusal of Rubashkin's trial judge, Chief Judge of the Northern Iowa Circuit, judge Linda Reade. 

Presiding Appellate Court Judge Riley, who asked most of the questions, asked whether the recusal issue was brought up too late. Lewin apparently had discovered the issue after trial.

[Editor’s note: This is incorrect. Rubashkin’s trial attorneys knew about the recusal issue but chose not to bring it before the trial, and this is documented. What Lewin is trying to do is to claim that the judge’s cooperation with ICE was more extensive than known before the trial. This is a questionable contention that his FOIA documents don’t really seem to support.]

Lewin was ready for that question and cited one of Riley's own opinions saying the issued was discovered when it was and that's when the issue was brought up.

Judge Riley also asked whether Lewin could point to trial rulings which went the wrong way because of Judge Reade's failure to recuse.  Lewin was prepared and in essence said that that was irrelevant, that once it is determined that a Judge should recuse no further prejudice need be shown (these are my words not his).

Judges Smith and Murphy also asked questions.

When Lewin ran into resistance on the recusal issue he stated that what he really wanted was for the Court to send the case back down for a hearing by another judge on whether Judge Reade should have recused herself. It seemed like a logical argument, and I saw the judges taking notes.

When his first 25 minutes were about up Judge Riley on his own motion gave Lewin more time to deal with the length of sentence issue which Judge Riley seemed to be very interested in. Lewin made a compelling argument that the money laundering ten year sentence was essentially duplicative. His argument made sense to me, although the government attorney had a counter argument.My guess, and its just that,is that he sentence gets reduced by those ten years.

Lewin also argued that the calculation of loss  was improper and thus the remaining sentence was too long. 

The government's argument was also well done and its attorney, Peter Deegan, hit on the lack of a record regarding the recusal and harped on Lewin’s drawing of inferences [that the FOIA documents do not support, and drawing inferences and calling those inferences facts].

Lewin hit back at what he claimed was a mischaracterization of two appellate opinions.

He then ended with a statement of how holy Rubashkin is and how the observant Jewish community was all on his side.  That's the only part of his presentation that I not only disagreed with substantively but thought was unnecessary.

No one knows what will happen but my money is on a reduction of the sentence either directly by the Court of Aappeals – Judge Riley said he was bothered by the length in general – and a remand to the District Court for a hearing by another judge on whether Judge Reade should have recused herself. But those are only guesses.

The only surprise was that Lewin says he will file a renewed motion for release on bond before the Court of Appeals while the appeal is pending.

Given the summer and vacations I'm guessing there will be ruling in September. 

If I  were in the Rubashkin camp I'd feel that things went as well as could be expected. I think he will eventually be in jail for a significant time but not 27 years.

To those of you in the Rubashkin camp who were there – or who listen to the proceeding when it is posted – I’m interested to see how you hear the arguments, but as I said this morning, my opinions are irrelevant.

Let me add that he case was very well argued by both sides. Judge Riley complimented both sides on their briefs and arguments - this is  rarely done and his comments were not gratuitous and were sincere. I can also say that he mostly ultra-Orthodox and Orthodox audience behaved with decorum, and few people were rocking and praying or reacted visually to questions or answers.

For those of you who have posted anti-Lewin comments based on what he has done in this case and others I can tell you he did a superb job arguing this very difficult case. I wanted to shake his hand afterwards but could not find him and had to leave.

Many people complain about our system of justice but anyone attending today's hearing would have to be impressed.

Comments

[Son of Chosen]

"To those of you in the Rubashkin camp who were there – or who listen to the proceeding when it is posted"

Recordings of the proceeding will be posted where?

[Norm]

I hurriedly typed the aboves out when I got back to my office and had people waiting.

Let me ad that he case was very well argued by both sides. Judge Riley complimented both sides on their briefs andarguments-this is rarely done and his comments were not gratuitous and were sincere. I can also say that he mostly frum audience behave with decorum and few people were rocking and davening or reacted visually to questions or answers.

For those of you who have posted anti-Lewin comments based on what he has done in this case and others I can tell you he did a superb job arguing this very difficult case. I wanted to shake his hand afterwards but could not find him and had to leave.

Many people complain about our system of justice but anyone atending today's hearing would have to be impressed.

The Government's attorney's name was Dean not Degan.

[Shmarya]

Norm –

I added this to your post with a couple small edits, and I fixed the name of the US Attorney.

Thanks, again!

[Jack]

Shmarya or Norm,

Do you have any idea where and when the recording of oral argument will be posted?

[Shmarya]

Norm –

I called the US Attorney's office. The attorney who argued for them was Peter Deegan.

You must have misheard his name, or the judges must have mistakenly called him Mr. Dean.

[effie]

Peter Deegan was the trial attorney, too.

[fyge]

Here you can hear inside the court room

http://8cc-www.ca8.uscourts.gov/OAaudio/2011/6/102487.MP3

[ah-pee-chorus]

norman-
thanks so much for your efforts .

[Seymour]

He then ended with a statement of how holy Rubashkin is and how the observant Jewish community was all on his side. That's the only part of his presentation that I not only disagreed with substantively but thought was unnecessary.

this was a mistake since if he was so holy he would not have done any of this

[Seymour]

He then ended with a statement of how holy Rubashkin is and how the observant Jewish community was all on his side. That's the only part of his presentation that I not only disagreed with substantively but thought was unnecessary.

think this was not needed it makes Judism look bad that we still call him holy even thought he committed fraud

[Aleksandr Sigalov]

Thanks for the link. I've listened to this nice recording...

I think that the question that is on the table if Sholomo going to behave and be a good goy?! (pun is intended)

[FormerPostvillian]

I think a ten year decrease would sound reasonable it he would apologize and show some remorse.

If not, forget it.

[Satmar Rebbe]

Either way, he's doing time. He did the crime, he'll do time. Any new news from Skvere?

[OMG]

Posted by: fyge | June 15, 2011 at 04:51 PM

Thank you for this link.

[effie]

Lewin apparently had discovered the issue after trial.

No, he didn't.

[itchiemayer]

I honestly don't remember. When and how did the defense discover the "recusal" issue?

[larry]

Posted by: itchiemayer | June 15, 2011 at 09:38 PM

They asked for the info all along but were denied access to it. Only after the case was over did they obtain some – heavily redacted documents – via FOI suite. At that point they immediately requested a retrial.

Why do you and Mr. Rosenberg always assume that Lewin is lying?

[itchiemayer]

Larry - I have my doubts on this issue and want to see proof that Lewin did know. If he did know, then his argument becomes moot, if he did not know, then it is extremely relevant.

Lewis has done some questionable things, like cutting off quotes to change their meaning, however slight. Nonetheless, I am beginning to wonder if it can be said with certainty that he did know. Shmarya claims he did, and probably has posted the details at some point. I can't recall.

[Dr. Dave]

The sentence was too long. This gives the defense the chance to re-argue the case or perhaps come to a more reasonable deal with the prosecutor's office.

[Critical minyan]

. Good lawyers tell their clients to settle or not be so aggressive in business that the government feels the need to make an example of you.
Rubashkin got a 27 year sentence. He should have got 3 years. It was totally lewins fault, If lewin gets it knocks down to 10 years, it's still a fucking disaster of his creation.
Lewin is a scumbag, regardless of how this turns out for his client. I hope rubashkin gets his sentence reduced regardless.

[FormerPostvillian]

3 years? Your out of your mind.

But I agree his lawyer hasn't helped him.

[Anon]

Was Lewin involved in the original defense.

Everyone seems to be knocking him for the fact tat the defense did a bad job in the original case. I though Lewin came aboard after the verdict.

[Shmarya]

That isn't really true.

Lewin wa an attorney for Agriprocesors for many years, and he advised the Rubashkins during the trial.

And you make an error if you think Rubashkin's defense did a bad job.

Their choice not to ask for recusal was most likely made because they knew if would be rejected, and that they would lose if they applied to the appellate court for relief.

I think the strategy was to wait until after the trial and then 'discover' documents that would be the basis for an appeal.