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January 30, 2008

Lynne Stewart appeal raising lots of notable issues

As detailed in press reports assembled here and here by How Appealing, there were "intense arguments Tuesday at the 2nd U.S. Circuit Court of Appeals" over the federal conviction and sentence of defense attorney Lynne Stewart.   This New York Law Journal piece provides many highlights:

Defense attorney Joshua Dratel, trying to win a reversal of Stewart's 2005 conviction for providing material support to a terrorist conspiracy, claimed that Stewart's release of a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the outlaw Islamic Group was protected by the First Amendment.  But Anthony Barkow, an Assistant U.S. Attorney in the Southern District of New York who was part of the government's team during the trial before Judge John Koeltl, told the panel that there was "abundantly overwhelming evidence" that Stewart and interpreter Mohamed Yousry "knew that what they were doing was wrong" when they passed messages between the Islamic Group and the sheik....

Judges Guido Calabresi, John M. Walker Jr. and Robert Sack threw one question after another at lawyers for Stewart, Yousry and a third co-defendant, Ahmed Abdel Sattar, who was convicted of engaging in a conspiracy to murder in the Middle East.... The arguments Tuesday occurred before hundreds of people, many of them supporters of Stewart, who nearly packed the ceremonial courtroom on the ninth floor of the courthouse at 500 Pearl Street....  During the first two hours of the arguments, Calabresi and Sack returned repeatedly to the issues of knowledge and intent....

With the appeal pending, Stewart, who was disbarred in April 2007, has yet to begin serving a 28-month sentence, which the prosecution believes is far too low for the crime.  Barkow argued that Koeltl abused his discretion in giving Stewart a "slap on the wrist."  Barkow received more than a sympathetic response from Walker, who said Judge Koeltl "didn't sufficiently consider that she abused her position as a lawyer and lied to the government" when Stewart signed attorney affirmations promising to abide by the special administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group.

"There's a serious aspect to this case ... that a lawyer is sworn to uphold codes of conduct and ethics and behave in a particular way," Walker said.  He said that Koeltl "in effect" nullified the terrorism enhancement in the sentencing guidelines "because there was no harm."  "Doesn't the judge have to at least account for the guidelines? It seems there was no consideration," he said, adding later, "We don't want total freewheeling judges just to make decisions that they choose."

Given the make-up of the panel and all the intricate and important issues involved, I would expect a split decision in this case and further appeals (both en banc and to SCOTUS) perhaps by both sides.  In other words, I suspect this Stewart case will generate plenty more stories in the months and years ahead.  But whether these stories will involve the federal sentencing issues that obviously are troubling Judge Walker remains to be seen.

January 30, 2008 at 07:49 AM | Permalink

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"Barkow received more than a sympathetic response from Walker, who said Judge Koeltl "didn't sufficiently consider that she abused her position as a lawyer and lied to the government" when Stewart signed attorney affirmations promising to abide by the special administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group."

This is most fascinating and I think a criminal lawyer also needs to be an administrative lawyer nowadays. The distinction between criminal law and civil law becomes more blurred everyday. This is intentional for obvious reasons: reasonable doubt, ex post facto and double jeopardy all are different under civil law. The Bill of Rights is not as pesky.

In this case, were the "administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group" legal? Meaning, for example, was this regulation approved under the federal APA or is it, perhaps, an underground regulation and therefore invalid?

There is a worldwide shift in favor of administrative regulations for just about everything and criminal defense attorneys may need to become experts on admin law, because though they are administrative, the penalties are often criminal-like punishment. Google, for example, "Third Party Policing" for some insights on this movement. It is popular because most everyone can think of someone else who should be well regulated.

Posted by: George | Jan 30, 2008 10:32:06 AM

1. The Luxor Massacre: Terrorists Kill 60 tourists and stuff fliers in their sliced-open stomachs to free the Sheikh.
2. Stewart illegally (in violation of SAM) publicized the Sheikh's wishes to end the terrorist's cease fire (she was caught on tape blabbing off about how she should be awarded for her acting job fooling the guards into thinking she was there to speak as a lawyer to her client rather than as a facilitator of death. Her argument for why she tried to fool the guard was that she was trying to protect the lawyer client privilege. I'm no expert but it seems to me the privilege wouldn't apply to Lynne's actions because she wasn't there for the purpose of providing legal advice/services but she was there for the illegal purpose of violating the SAM she knowingly and willfully signed (and never filed anything arguing against the validity of the SAM or that she might in the future simply ignore it if she sees fit). It seems like there's an argument the crime fraud exception would apply.
3. She argued what she did posed no threat to anyone and that she was merely advocating for her client's rights and to keep his name visible and voice heard so that she had leverage with the government. "Leverage?" By leverage does she mean the threat of terrorist activity?

How can anyone take this woman seriously? She is an avowed Stalinist yet wraps herself in the banner of civil rights advocacy?!? Maybe she should spend a little time in a gulag? 30 years sounds fair to me.

Posted by: zach | Feb 6, 2008 5:24:43 AM

In reading the government's brief, one finds that Omar Abdel Rahman told his followers to cease any violent acts. After this, the Luxor massacre occurred. The government claimed it was perpetrated by one of Rahman's followers. But this man was not following the Sheikh's directions, if he indeed was involved. It seems nobody knows to this day who pulled off the massacre, according to wikpedia. So there's no need to smear the proceedings with something neither Stewart nor Rahman had anything to do with. Rahman never withdrew his support for the ceasefire. How can anyone take Stewart seriously? She won some important cases. That's how. That's one reason why the government took her seriously enough to mount a case against her, however bogus. The whole episode is based on manufactured terror--FBI stings followed by pliant juries in the face of bogus terrorist threats. Rahman was convicted merely for issuing religious opinions on when violence was justified in particular situations. Every religion has to deal with that kind of question.

Posted by: PeterD | Feb 26, 2010 10:06:10 PM

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