Understanding The Supreme Court Rubashkin Decision
The Supreme Court of the United States (SCOTUS) turned down Sholom Rubashkin's petition for a Writ of Certiorari (Cert) without comment. Here are facts you need to be able to understand this properly and put it into context.
1. Is not an appeals court. To quote Wikipedia:
…Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, most cases cannot be appealed to the U.S. Supreme Court as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court.….
A minimum of four of the nine Justices are required to grant a writ of certiorari, referred to as the "rule of four.” The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that concluded in June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1 percent.…The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources.…
The Supreme Court sometimes grants a writ of certiorari to resolve a "circuit split,” when the federal appeals courts in two (or more) federal judicial circuits have ruled differently in similar situations. These are often called "percolating issues.”…
2. SCOTUS comments at most on a small handful of cases it turns down each session. Sometimes it doesn't comment at all.
3. There is no legal reason that mandates SCOTUS to issue comments about the cases it rejects.
Rubashkin's Cert Petition
1. Is based on two claims: a) "new" evidence unavailable before trial proves the trial judge should have recused herself and, b) the sentence of 25 years (plus a 2-year enhancement for perjury) is, 1) too high for a first time non-violent offender, 2) much higher than other jurisdictions, and 3) failed to grant him a downward departure for his autistic son and for the all the charity he (Rubashkin) gave.
Facts – The "New" Evidence
1. Rubashkin's attorneys knew Judge Reade was involved in logistical planning for the court's remote location (including making sure enough defense attorneys were there and that they had access to private meeting rooms, secure Internet, telephones, support staff, etc.) before the immigration raid on Agriprocessors but chose not to ask her to recuse herself.
2. Nothing in the FOIA documents Nathan Lewin got after the trial showed anything other than this logistical cooperation. Further, nothing in those documents shows that Judge Reade even knew what company would be the target of raid, and the various agencies involved in the planning say that she did not know. (Even if she had known, her involvement was similar to hearing evidence for issuing a search warrant [or several search warrants] and it would not have automatically disqualified her from hearing Rubashkin's case.)
3. To merit a new trial, newly discovered evidence must actually be new in the sense that it a) was unknown to the defendant before trial and, b) could have led to a different trial outcome. So finding out after the trial that Judge Reade spoke to US Attorneys and ICE about the set up of the remote court location 12 times rather than 3 or 4 times is not new evidence. She could have spoken to them 100 times about secure IP addresses, number of bathrooms and showers, and the date the raid would take place and that would not be new evidence because what was spoken about and the fact that Judge Reade and the US Attorney and ICE were speaking was already known before the trial began. And because Rubashkin could show no error at trial that would have caused his verdict to any different than it was, the new outcome standard was not met.
Facts – The Sentence
1. The United States Sentencing Commission Guidelines call for a 22 to 30 year sentence. That is calculated by the amount of loss to the lenders (almost $27 million), not by the number of charges, and was stiffened by a conspiracy enhancement given to Rubashkin because he directed a conspiracy to defraud.
2. A federal judge is not required to depart downward or to enhance upward in sentencing. What she is required to do is to explain in her sentencing memorandum why she has or has not done either. Judge Reade did that, and met and even exceeded her requirement to do so.
3. Rubashkin's sentence was not stiffer than all other first time white collar criminals who have committed similar crimes. But there is variance between the various judicial circuits in sentencing for crimes like this. That is because the sentencing guidelines are not mandatory. Judges have to explain any departure from them, but as noted above, they can depart downward or enhance upward.
4. Rubashkin's only real hope was that SCOTUS would see these variances as being so extreme that they warranted reconciliation. But it did not, probably because there are almost no upward enhancements in sentencing compared to downward departures, and the sentencing range was, in effect, set by Congress. As long as a sentence is in the range set by the guidelines, SCOTUS will not get involved (unless, perhaps, the potential reasons for downward departure were extremely compelling or unique, which was not the case here).
Rubashkin didn't have case.
But he did have the legal right to try to convince SCOTUS that he did.
His attorneys – the best money can buy – took their best shot, but it wasn't enough.
If you got your Rubashkin news from Nathan Lewin, Guy Cook and Allan Dershowitz, or Yated Ne'eman, Matzav. VIN, Yeshiva World, or the Chabad blogs, you were probably blindsided by SCOTUS's refusal to take Rubashkin's case.
But if you got your Rubashkin news here, and if you read the various court documents and court filings I posted over the years, you would have been much less shocked, if at all. All the points (and more) about Rubashkin's sentence, the "new" evidence, etc., were made here many times over the past years.
I have advocated since Rubashkin's sentencing for effort to be put into getting the sentencing guidelines reformed.
In the end, that may be Rubashkin's only real hope for a reduced sentence.