The attorney for the kosher meatpacker who stole millions of dollars from his lenders, employed hundreds and hundreds of undocumented workers, and who was convicted on 86 counts of fraud calls the United States Supreme Court's refusal to take Sholom Rubashkin's case "the greatest injustice that I have seen in more than 50 years of law
practice" – even though his client has never shown remorse, hid his assets, refused to make restitution, refused to cooperate with federal investigators, committed multiple counts of perjury, helped at least one witness against him flee the country, obstructed justice while released on bail, and allegedly bribed a public official.
Nathan Lewin
Does Sholom Rubashkin deserve a 27 year prison sentence?
The answer is complex.
The United States Sentencing Commission's Guidelines call for a 22 to 30 year sentence for Rubashkin's frauds. (That is based primarily on the amount of loss to his lenders and the fact that Rubashkin headed a conspiracy, not on the number of counts – 86 – he was convicted on.)
So, yes, on the basic level of doing time for the crimes committed, Rubashkin deserves those 27 years in prison.
But those sentencing guidelines are, I think, unjust. They over-penalize for crimes like Rubashkin's, and lead to incredibly long sentences.
The problem for Rubashkin is that his legal team – led for the appellate process by Nathan Lewin – and his legal defense/pidyon shvuyim fund steadfastly refused to raise the sentencing guidelines as an issue.
Why?
They preferred to tell a fabricated story of "discrimination," or "antisemitism" because, I think, they believed it raise much more money that the truth would.
This week, the United States Supreme Court has refused to hear Rubashkin's case.
The Jewish Press quotes Lewin on that Supreme Court decision:
The Supreme Court’s refusal to consider the Rubashkin case – which is the greatest injustice that I have seen in more than 50 years of law practice – was very distressing. But the legal battle is not over. There are, in American legal history, a few famous cases “that will not die.” The Rubashkin case is in that league. The Torah teaches that tzedek does not come easily; it must be pursued. Even at this juncture, there are legal avenues for overturning a fundamentally unfair trial.
Rubashkin basically has one more appeal he can make. It is called a 2255 petition, which is described by Alan Ellis and James H. Feldman, Jr. this way:
…The motion to vacate, set aside or correct a sentence provided by 28 U.S.C. §2255 is a modern descendant of the common law petition for a writ of habeas corpus. It is available only to people convicted in federal courts who are in custody.…The §2255 motion is the postconviction tool most federal prisoners turn to after they have exhausted their appeals. When it is used effectively, it can be a powerful tool to right injustices that were not or could not have been raised on direct appeal. This is because it gives courts broad discretion in fashioning appropriate relief, including dismissal of all charges and release of the prisoner, retrial, or resentencing.…
Section 2255 provides that "prisoners" may move for relief "on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”…Most §2255 motions allege violations of the defendant's Sixth Amendment right to the effective assistance of counsel.…
In Rubashkin's case, that would probably mean that Rubashkin would have to claim that his attorneys were incompetent and made serious errors, most probably his trial counsels' decision not to ask Judge Reade to recuse herself before the trial began.
(Rubashkin and his attorneys knew that another defendant had already asked for the same thing on the same basis Rubashkin would have asked – the judge's role in planning the remote-location courthouse logistics with ICE and the US Attorney's office before the Agriprocessors immigration raid took place – and had been turned down by Reade, and they chose not to make the same request.)
A 2255 motion on those grounds would almost certainly fail for the same reasons Rubashkin's appeals failed.
But it should be expected that a prisoner will take any chance that exists to gain his freedom, and as long as Rubashkin can afford to do it, he will.
The sad truth is that the worst actor among all of Rubashkin's attorneys has probably been Lewin, but the nature of the legal process makes it difficult for Rubashkin make that claim.
And that's too bad, because I think there are a lot of critics of Agriprocessors and the Rubashkins who would be more than glad to file amicus briefs and testify in court to Lewin's corrosive and often vile role in what became Sholom Rubashkin's dramatic fall.