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June 17, 2010

Updating the continuing debate over Lynne Stewart's upcoming resentencing

This new article in the New York Law Journal, which is headlined "Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing," provides the latest news in the long-running controversy surrounding the sentencing of noted defense attorney Lynne Stewart. Here is how the piece starts:

Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.

Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.

Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a "bubble" protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.

"The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony," the prosecutors argue in their memo. They say Stewart's sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.

Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl's initial sentence "reasonable and just." They argue that Stewart was being truthful when she claimed there was a "bubble" or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.

Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was "dramatically unreasonable" and "overstated the seriousness" of her conduct. "Moreover, this court's determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts," they said.

Stewart's sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.

In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called "breathtakingly low" considering Stewart's "extraordinarily severe criminal conduct." Walker said it was plain the court should have vacated the sentence as substantively unreasonable.

The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.

But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that "no victim was harmed" when Stewart issued the press release. Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of "punting" on the biggest issues in the case.

June 17, 2010 at 09:00 AM | Permalink

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