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June 28, 2012

Second Circuit panel now affirms Lynne Stewart's (way below guideline) 10-year prison sentence

One of many noteworthy legal developments today sure to be overshadowed by the Supreme Court's health care ruling is today's Second Circuit panel opinion upholding the 10-year prison sentence of (in)famous defense lawyer Lynne Stewart.  The lengthy unanimous opinion in US v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (available here), covers a lot of interesting sentencing ground, though the most extensive discussion concerns Stewart's claim that enhancement of her sentence due to her initial post-sentencing public comments violated the First Amendment.   Here are a few paragraphs from the start and end of the panel ruling:

Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment [of affirmance]....

Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months.  She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court . . . supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101.  She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc.  Def.'s Br. at 103.  And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable....

It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court.  Rigas, 583 F.3d at 123.  In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence -- particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them."  Stewart I, 590 F.3d at 147-48.  But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar.  When confronted with these transgressions, she lied repeatedly under oath.

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.  We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.

June 28, 2012 at 01:50 PM | Permalink


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Thanks for posting, Doug. Folks may be interested in an article I wrote several years ago on the prosecution of Lynne Stewart, which may be downloaded for free: http://works.bepress.com/tamar_birckhead/4/

Here is the abstract:

At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures ("SAMs"), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against her. This Article argues that post-9/11 administrative mechanisms such as the SAMs represent a classic case of governmental overreaching, one that is in line with a long history of compromising civil liberties and limiting access to the courts during periods of war and national anxiety. It analyzes the effects of such mechanisms upon criminal defendants and those who represent them, and uses Lynne Stewart's conviction as a lens through which to examine the his-tory that brought us to this point as well as serving as a concrete example of what can, and does, happen when rules regulating the bounds of proper legal advocacy are violated. It concludes by demonstrating that although effective de-fense strategies may temper the impact of certain aspects of the SAMs, the regulations' very existence has the potential to "chill" the attorney-client relationship and thereby threaten the Sixth Amendment -- a reality the courts have yet to acknowledge.

Posted by: Tamar Birckhead | Jun 28, 2012 3:21:42 PM

Ms. Birckhead --

Am I to take it then, that being a defense lawyer constitutes a right to commit treason, or at the minimum a right to commit treason while screening off the government from any effective means either of finding out about it, or punishing counsel for having done it?

If not, could you set forth the specific and effective measures you think the government could properly undertake to interrupt a convicted defendant's planning, facilitated by counsel, to hijack the next plane or plant the next bomb?

Posted by: Bill Otis | Jun 28, 2012 3:51:00 PM

Dear Mr. Otis,

No, of course being a defense lawyer does not constitute such a right, and I do not suggest that it does in the article (which I encourage you to look at, although I can imagine that reading dry legal scholarship isn't first on anyone's priority list). Instead, I tried to use the Stewart case as a jumping off point for thinking about how to ensure that the government has clear legal standards to follow when monitoring attorney-client communications and that there is sufficient judicial oversight. I was also interested in the impassioned reaction of the defense bar at the time of her conviction, and the article attempts to make the case that rigorous legal advocacy was not threatened (as some claimed) by her conviction (see footnote 235 if you are an R.E.M. fan). To be candid, it was the first academic piece I had written after 10 years of practice, including in federal court terrorism cases, and I would probably approach the issues somewhat differently today. I only mentioned it here to give readers a background on the facts, not as a defense of Stewart's actions.
Best, Tamar

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Posted by:  They call me ▬►Mister Blank◄▬ | Jun 29, 2012 7:50:55 AM

Judge Koetl--another Democrat playing footsie with the radical left. What is it about Dems and criminals and people like Stewart, Brett Kimberlin and Bill Ayers?

Posted by: federalist | Jun 29, 2012 9:26:25 PM

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