Lawyers for Sholom Rubashkin today filed a petition for writ of certiorari for the United States Supreme Court. Rubashkin, who is serving a 27-year sentence for bank fraud, is seeking relief from the Supreme Court because the Eighth Circuit Court of Appeals refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair. The newly discovered evidence showed that the trial judge had participated for seven months before the immigration raid on Rubashkin’s meat-packing plant in planning for the raid. She and the prosecutors failed to disclose these meetings to Rubashkin’s trial lawyers. Rubashkin is also seeking relief from the Supreme Court because the Eighth Circuit upheld his extraordinary 27-year sentence as “reasonable” even though the trial court did not consider whether that sentence would result in unwarranted disparities among similarly situated defendants, as required by federal sentencing law.

Rubashkin is represented by Paul Clement of Bancroft PLLC and Nathan Lewin of Lewin & Lewin, LLP.

“The Court of Appeals’ decision raised two issues of extraordinary importance to criminal defendants and to the proper functioning of the criminal justice system as a whole,” said Paul Clement. “Sholom Rubashkin was given an unusually harsh sentence for his actions. In my entire career, I cannot recall a similar instance of harsh punishment for a non-violent, first-time offender with a long record of charitable service to his community.”

Nathan Lewin, who represented Rubashkin and argued his appeal in the Eighth Circuit, jointly authored the petition for certiorari with Paul Clement. Mr. Lewin said, “The Supreme Court will surely recognize how outrageous and unjust Mr. Rubashkin’s prosecution and conviction have been and will, with G-d’s help, review and reverse the decision below so that he will be able to return as soon as possible to his loving family and community.”

Background on Rubashkin Case:

Sholom Rubashkin was arrested for immigration-related charges six months after the Immigration and Customs Enforcement raided the meat processing plant, Agriprocessors, located in Postville, Iowa. Less than a month later, he was arrested again on bank-fraud charges. He was later acquitted of all state charges following the federal trial. The government initially recommended Rubashkin receive a life sentence, but reduced that to 25 years after prominent voices in the legal community spoke out against the severity of the sentence, including from six former U.S. Attorneys General. The district judge sentenced him to two years more, resulting in a 27-year sentence, effectively still a life sentence for a 51-year old man—without undertaking its obligation to consider whether that sentence resulted in disparities with similarly situated defendants. In 2010, Rubashkin filed a motion for a new trial on grounds of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure because he discovered from documents produced in a Freedom of Information Act lawsuit that the trial judge, Linda Reade, had participated actively in at least 12 ex parte communications with prosecutors and immigration officials, in planning the immigration raid. He requested that an evidentiary hearing be conducted and that a different judge be assigned to his motion. Nonetheless, Judge Reade personally denied the Rule 33 motion and other requested relief. The Court of Appeals refused to consider whether this ruling was lawful because it held that a Rule 33 motion may pertain only to newly obtained proof of guilt or innocence, and not to evidence that concerns the fundamental fairness of the trial. It also upheld his extraordinary 27-year sentence as “reasonable.”

The petition for a writ of certiorari asserts that in federal Courts of Appeals other than the Eighth Circuit a defendant may make a motion under Rule 33 when new evidence demonstrates that a trial was fundamentally unfair, and not only where there is new evidence relating to guilt or innocence. It also contends that an evidentiary hearing was necessary and appropriate, and that the motion should have been assigned to a different judge. It further claims that other federal Courts of Appeals have vacated sentences where, as in this case, a sentencing court failed to consider a defendant’s argument for a lower sentence or explain its basis for rejecting it. Rubashkin was also tried in an Iowa state court on multiple misdemeanor charges alleging that he knowingly hired under-age workers. The state prosecutor initially filed 9,311 counts against Rubashkin, but only 67 were submitted to the jury. Rubashkin was found not guilty on all 67 counts.

The prosecutors deliberately concealed from Rubashkin’s trial lawyers the details of more than a dozen meetings they had with the trial judge before the immigration raid that resulted in his arrest and prosecution. Since the facts were concealed from them, the lawyers did not move for the judge’s recusal. The recent release of the independent report on the prosecution of Senator Ted Stevens should focus attention, as well, on the misconduct of the prosecutors in the Rubashkin case.

To date, more than 52,000 people have signed a petition on the White House’s “We the People” website, urging an investigation into misconduct by the prosecution. Furthermore, 50 members of the U.S. House of Representatives have written letters to Attorney General Eric Holder, urging an investigation into the allegations of prosecutorial misconduct. In June, 75 U.S. Attorneys and law professors sent a letter to the DOJ Office of Professional Responsibility, joining the call for an immediate investigation into allegations of ex parte communications between Judge Reade and prosecutors.

(YWN Desk – NYC)