UPDATES & ANALYSIS

4.03

Sholom Rubashkin Files Petition for Certiorari with U.S. Supreme Court

by Ryan Koopmans | April 3, 2012

By Ryan Koopmans

As we reported back in February, former Agriprocessors manager Sholom Rubashkin has hired appellate superstar Paul Clement to appeal his case to the U.S. Supreme Court.  Yesterday, Clement took the first step in that process.  He and Nathan Lewin (who represented President Nixon before the Supreme Court during Watergate) filed a petition for certiorari with the Court and asked the justices to consider two questions:

(1) Whether Federal Rule of Criminal Procedure 33 requires a criminal defendant with newly discovered evidence that goes not to guilt or innocence but to the fundamental fairness of his criminal trial — here, the trial judge should have been recused under 28 U.S.C. § 455(a) — to show nonetheless that the new evidence would probably lead to his acquittal; and

(2) Whether a sentence is unreasonable when a district court fails to consider and explain on the record, as required by [the Supreme]  Court’s precedents, its basis for rejecting a defendant’s nonfrivolous argument for a below-Guidelines sentence — resulting in, here, a 27-year sentence for a first-time, nonviolent offender that is significantly greater than sentences for similarly situated individuals.

The full petition is here.  The government has 30 days to respond — although it often asks for, and receives, an extension.  The government may also choose not to respond, a common practice since prisoners file a large number of cert. petitions and the Supreme Court grants very few.

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