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.