Ben Brafman: Judge in Rubashkin Case Has Much More Latitude and Flexibility

The following are edited excerpts of a report by Mr. Larry Gordon, publisher of the Five Towns Jewish Times:

Now before us is the matter of Reb Shalom Mordechai Rubashkin, former vice-president of Agriprocessors in Postville, Iowa, one of the most prodigious producers of glatt kosher meat and poultry on the market for many years. Things turned sour for the company and many of its executives, including Mr. Rubashkin, after a U.S. immigration agency raid on the plant.

One of the most prominent criminal defense attorneys in the United States today is Ben Brafman, to whom we turned this week to gain some insight into the case. Mr. Brafman is not involved in the Rubashkin case. He specializes in defending “white collar” criminal cases, but is perhaps best known for legal counsel he has provided for high-profile celebrities, including, more recently, football player Plaxico Burress.

To understand the nature of sentencing and what these decisions are rooted in, I first inquired about the Burress case and why the star athlete received what seemed to be such a harsh sentence of two years in state prison. After all, he shot himself in the leg and caused no harm to anyone else. Mr. Brafman explained that it took him eight months to negotiate the two-year sentence because of the tough “mandatory” sentences required under New York’s gun laws. If he had not taken that plea, Burress would have faced a mandatory minimum sentence of three-and-a-half to twelve years in prison.

Clearly, guns-especially illegal guns-are a problem here in New York, and the law apparently needs to come down hard so as to dissuade those contemplating carrying an unlicensed weapon.
Mr. Brafman explained that the judge in the Rubashkin case has much more latitude and flexibility than there was in the Burress case. “State sentencing has by law certain guidelines that a judge cannot change,” Brafman said. On the federal side, after a Supreme Court ruling several years ago, the sentencing guidelines are merely “advisory,” and judges consider additional factors when deciding what a fair and reasonable sentence should be.

Federal law requires the courts to impose a sentence “sufficient, but not greater than necessary, to . . . reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense . . .” but also to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.”

On the downside of the judicial flexibility option, Mr. Brafman said, the fact is that judges across the country are still abiding by the sentencing guidelines in over 70 percent of all cases.

One difficulty in the Rubashkin case is that sentencing for fraud convictions in federal court are generally driven by the amount of money involved. The higher the amount, the higher the advisory guideline sentence. Also, in a high-profile case there is always the concern that the judge will want to set a harsh example in the hope of creating deterrence for others. There are many reasons to suggest that a lenient sentence would be appropriate in this case. Given the notoriety of the case, however, Mr. Brafman says Rubashkin’s lawyers will have their work cut out for them.

He added that it is not a good indication for Mr. Rubashkin that prosecutors last week dropped the immigration charges against him. He said that apparently the prosecution feels that the sentence on the fraud charge will be severe enough so as not to warrant the effort or expense to try another case against Rubashkin.

So, while the judge in the Rubashkin case is allowed to take into consideration things like the fact that Reb Shalom Mordechai has no prior criminal record and that he has a large family that he needs to support, it is not likely that those issues will convince the judge to lighten the sentence.

We spoke to another attorney, who requested not to be identified because of their involvement in the ongoing appeal of the denial of bail for Mr. Rubashkin as well as the appeal of the recent conviction. This attorney pointed out, as did Mr. Brafman, that a federal judge’s sentence will frequently be meted out in accordance with the amount of money that was involved in the fraud.

There are a number of complicated legal details involved in the case, the attorney currently working on the case said. The fact that the immigration charges were dismissed may impact dramatically on the fraud conviction, because the two cases are intertwined. Then there is also the matter of the venue where the trial was held, in South Dakota. There is a question whether Mr. Rubashkin had a fair trial by a jury of his peers.

{Five Towns Jewish Times/Matzav.com Newscenter}