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February 29, 2012

Same players, different arguments, for round 2 of Lynne Stewart sentencing appeal in Second Circuit

This new Reuters piece, headlined "NY lawyer Lynne Stewart asks court to reconsider sentence," reports on the latest sentencing appeal in a high-profile federal case out of New York.  Here are some interesting details:

Comments made by New York lawyer Lynne Stewart should not have been used to increase her prison term, Stewart's attorneys told the 2nd U.S. Circuit Court of Appeals on Wednesday.

Stewart, an outspoken criminal defense attorney now disbarred, was convicted by a Manhattan federal court jury in July 2005 of helping a terrorism suspect smuggle messages to his followers from prison. She was sentenced to 28 months in prison in 2006.

Three years later, after a government appeal, a three-judge appeals court panel sent the case back to U.S. District Judge John Koeltl for resentencing on the grounds that the initial sentence was insufficient.

The same judges -- John Walker, Guido Calabresi and Robert Sack -- also heard Wednesday's appeal.

Among other issues, the appeals panel said at the time that Koeltl had not considered comments Stewart made to supporters outside the federal courthouse immediately after she was sentenced. After the October 2006 sentencing, Stewart said she could serve the 28-month sentence "standing on my head." The government also cited two other comments she made in interviews after the sentencing.

Judge Koeltl found that the comments showed that Stewart did not regret her actions and that she thought his sentence was trivial. He increased Stewart's sentence to 10 years in July 2010.

On Wednesday, attorney Herald Price Fahringer told the appeals judges that Stewart's comments were protected by free speech and should not have been used against her. By using her comments, Koeltl's sentence had produced a "chilling effect," Fahringer said, and that others in future would refrain from expressing themselves "for fear that the same thing could happen to them."

Judge Sack was skeptical. "I'm not sure that freedom of speech means absolute immunity from the consequences of what you say," he said.

Specifically, Stewart's comments in this case were not a clear-cut denial of remorse, Fahringer said, and Koeltl should have been given the benefit of the doubt.

"If she had said outright 'I have no remorse'...in a public forum... could that be something that could be used against her?" Calabresi asked. "It if was clear," Fahringer answered.

Assistant U.S. Attorney Andrew Dember defended the sentence, saying that judge Koeltl had "indicated that Stewart said she was in a position to do this again."...

Stewart is serving her sentence at the Federal Medical Center prison in Fort Worth, Texas.

February 29, 2012 at 03:33 PM | Permalink


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Thi is a perfect example that depicts the Federal syetem is broken...Saying minor comments outside the court house to another, doesnot constitute ther individual doesn't have remorse or acceptance of responsibility.

It means she felt that she could do the 28 months easily, period...As far as the other 2 comments not sure what they are, but it really has nothing to do with went on in the court room..The feds have over reached big time in this case..

Posted by: Midwest Guy | Feb 29, 2012 4:52:21 PM

If the defendant says, "I'm sorry," the judge can consider that, but if she says, "I'm not sorry," the Constitution requires him to disregard it???

Far out!

Posted by: Bill Otis | Feb 29, 2012 6:17:35 PM

I am confused. She got sentenced and the basis of the appeal was her conduct after the sentence was issued. Sure, she was out pending appeal, but that doesn't seem to justify the difference: If she was incarcerated, serving her 28-month sentence, and wrote nasty statements from prison, it would be plainly unconstitutional for her sentence to increase on that basis.

Posted by: Alex | Mar 1, 2012 12:00:51 AM

If on remand a sentencing judge can consider post-sentencing rehabilitation (see the recent Pepper decision by the Supreme Court), then why can't the judge consider post-sentencing conduct that is not rehabilitative?

Posted by: domino | Mar 1, 2012 10:06:19 AM

The sentence was originally kicked back as being too light. The comments were therefore obviously NOT the only reason for the increase. And it's STILL light for this treasonous wretch.

Posted by: Rich Mantei | Mar 1, 2012 11:44:00 AM

Alex --

Could you provide a post-Pepper case holding that it is unconstitutional at re-sentencing for the judge to consider post-original sentencing behavior, when such behavior indicates lack of rehabilitation? Thanks.

Posted by: Bill Otis | Mar 1, 2012 12:26:31 PM

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