Rubashkin Team Planning
An Appeal
BY YOCHONON DONN
DES MOINES, Iowa –
Defense attorney Bob Barr announced
immediately after the sentencing
memorandum was released
yesterday that Sholom
Rubashkin will appeal the original
guilty verdict.
“This sentence is inconsistent
with the overwhelming view of
the legal community, including
six former U.S. attorneys general,
who have all said a first-time,
non-violent offense does not
warrant a multi-decade sentence,”
Barr said. “The court’s
sentence today is even more
than prosecutors asked for,
which is a very disturbing development.”
The team of lawyers who will
argue the appeal has not yet been
assembled, according to Mark
Weinhardt, a defense attorney.
He said that the defense wants
Ms. Reade’s conflict of interest —
she was the judge that signed off
on the federal immigration raid
— to be the main focus of the
appeal, although there are some
legal issues that may prevent
that.
Mr. Weinhardt said that while
Martin De La Rosa-Loera, a former
Agriprocessors supervisor
who was also a defendant in the
bank fraud trial, asked Ms. Reade
to excuse herself, Mr. Rubashkin
himself had not. It is legally
questionable if a defendant can
appeal an argument that was not
brought up in the original case.
The defense team has already
said at the conclusion of the trial
in November 2009 that they are
planning an appeal.
“Regardless of the sentencing
we know that’s there going to be
an appeal of the sentencing outcome,”
said Mr. Weinhardt.
Within ten days from today’s
official announcement of the
sentencing, the defense will file a
“notice of appeal” with the St.
Louis-based 8th U.S. Circuit
Court of Appeals. The court will
then send out a schedule when
all documents are due and when
the three-judge panel is available
to hear the case.
Mr. Weinhardt estimated that
the actual appeal will be heard
within 60 and 90 days and it will
last for “about a year .”
A panel of three judges will
hear the reasons why the defense
feels Ms. Reade erred in her
judgment. The panel can then
either remand the conviction —
necessitating a new trial — or
overturn the sentence. In both
cases the panel will send the verdict
back to Ms. Reade, explaining
why she erred, with a note
giving specific guidelines on how
to rule further.
Mr. Weinhardt said that there
are three options to take if the
appeals court rejects Mr.
Rubashkin’s request to overturn
Ms. Reade’s judgment: they
could ask the same panel to
rehear the case, they could
request a hearing among the full
11-judge court of appeals, or they
could go directly to the U.S.
Supreme Court.
All three options are very
rare. It is unlikely that the same
panel will rehear their case, and
the full court listens to appeals
less than one percent of the time.
The Supreme Court accepts
requests for a writ of certiorari,
as it is called, well under one percent
of the time.
“After that the odds are
against you,” said Mr.
Weinhardt.
The appeals court in St. Louis
is known as a conservative,
strongly pro-government court
who is not sympathetic to convicted
criminals.
But Mr. Weinhardt had
argued before this court seven
times previously and has
secured several acquittals.
He said that a recent client
was sentenced to time served in
a case similar to Mr.
Rubashkin’s.
While any request for an
appeal will also ask that the
defendant be allowed out in bail,
there was as yet no new request
for bail for Mr. Rubashkin.
