The Rubashkin Appeal: A Report From The Courtroom
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.