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February 23, 2010

More opinions on the Lynne Stewart sentencing as Second Circuit denies en banc review

Today the Second Circuit has denied en banc review of its panel decision to reverse the below-guideline sentence given to (in)famous laywer Lynne Stewart.  Here is the text of the order:

Following disposition of this appeal on November 17, 2009, and prior to the amended disposition on December 23, 2009, active judges of the Court requested a poll on whether to rehear the case in banc regarding only the sentence imposed on defendant Lynne Stewart.  A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Chief Judge Jacobs concurs in an opinion joined by Judges Wesley and Hall; Judge Pooler concurs in a separate opinion; and Judge Cabranes dissents in an opinion joined by Judge Raggi.

As this order reveals, a number of additional circuit judges were eager to add their two cents in this high-profile sentencing case, and the 30+ pages with these additional opinions can be accessed at this link.

UPDATE:  The New York Law Journal has this article addressing this latest ruling, which is headlined "2nd Circuit Denies En Banc Review of Lynne Stewart's Sentence."  Here is how it starts:

The light prison sentence given to disbarred attorney Lynne Stewart following her conviction for providing material support to a terrorist conspiracy continues to divide the 2nd U.S. Circuit Court of Appeals.

Three different opinions were issued by the circuit Tuesday as judges staked out positions on how the court should review the 28-month sentence Southern District Judge John J. Koeltl ordered Stewart to serve in 2006 for helping imprisoned Sheikh Omar Abdel Rahman communicate with his followers in Islamic Group.

The unmistakable message from at least five of the nine active judges is that Koeltl must impose a significantly tougher penalty on the 70-year-old Stewart when she is re-sentenced on April 22.

February 23, 2010 at 12:55 PM | Permalink


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I liked our legal system better when attorneys could vigorously represent unpopular clients without fear of being disbarred and imprisoned.

Posted by: John K | Feb 24, 2010 9:38:58 AM

Stewart's problem wasn't that she "vigorously represented" the terrorist; it was that she, as is normal for a certain type of defense attorney, helped him smuggle instructions to his organization. There's a number of lawyers in prison now who went all Stockholm Syndrome with their "clients" -- but not nearly enough of them.

Thanks to wealthy terror supporters overseas, and white-shoe firms that want their oil money, no terrorist lacks for vigorous representation.

Posted by: Kevin O'Brien | Feb 24, 2010 2:00:02 PM

Sorry -- should have said IANAL but, like Trotsky said of the revolution, there's a good reason to be interested in the law, because it's interested in YOU.

Posted by: Kevin O'Brien | Feb 24, 2010 2:01:31 PM

Helped him smuggle instructions to terrorists?

From what I recall, the case it was a good deal more tenuous than that...and considerably less ominous.

Basically her crimes were allowing a translator to converse in Arabic with Rahman about non-legal matters and responding at a news conference to a question about Rahman's views on a cease-fire his followers had been observing.

She also was convicted of having lied to the government when she initially signed off on SAM restrictions she was compelled to sign before the government would allow her to meet with her client.

Oh well, let me rephrase: I liked the legal system better when it wasn't quite so easy or common for the government to get between attorneys and their clients and eavesdrop on their conversations.

As for wealthy terror supporters overseas and white-shoe firms here pursuing oil money, wasn’t Stewart appointed by the court to represent Rahman?

Posted by: John K | Feb 24, 2010 8:44:50 PM

Excuse me for posting what I posted on another site, but I'd rather not rewrite it:
"We can see this denial as a positive development in the Stewart case. The poll lets stand the Second Circuit three-judge panel's decision to put the case back in the District Court judge's hands. The panel merely told the court to consider whether Stewart committed perjury when she testified in her trial, and resentence her accordingly. They did a lot of huffing and puffing, but other than that, said nothing, as the dissenters in the poll pointed out, to their chagrin. They wanted to hear the case to create law regarding the issues raised in the Stewart case that they say were not addressed by the three judge panel. So what we have in essence is a show of support for the district court, which sentenced Stewart to 28 months as opposed to the 30 years or more the government had hoped for. Apparently great deference is given to a district court decision, particularly in sentening."
Seems to me a lot of the articles on this decision/poll showed an overt bias against Stewart. I'm not a lawyer or a judge. I'm a journalist.

Posted by: PeterD | Feb 26, 2010 9:10:11 PM

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