Lynne Stewart sentenced

I'd forgotten that criminal defense attorney Lynne Stewart had not been sentenced until today.  The district judge sentenced her to 28 months in prison, which was a lot less than the 20 years the government has asked for, but not zero time either.  (In case you are wondering, the district judge was a Clinton appointee.)  The judge's remarks are interesting because they strike me as pretty balanced:

[I]n his remarks, the judge demonstrated that he did not believe Ms. Stewart represented the threat the government described.

There was “no evidence that any victim was in fact harmed” by her actions, the judge said. He also cited her long career as a “lawyer to the poor and the unpopular.”

“It is no exaggeration to say that Ms. Stewart performed a public service not only to the court but to the nation,” he said, adding that she did not chose her cases to become wealthy.

* * *

The judge noted that as a result of her conviction 20 months ago, Ms. Stewart lost her license to practice law and that she is banned from having any contact with her former client.

“The occasion for the crimes to be repeated will be nil,” he said.

But in turning down her request for no prison time at all, the judge indicated that she was not without culpability in this case, pointing to what he called “an irreducible core of very severe criminal conduct.”

The reaction to the Stewart prosecution has long puzzled me.  I understand the concern that the prosecution might abuse its power to indict criminal defense attorneys in an effort to chill the zealousness of their representation, and certainly Stewart's aggressive defense practices would make her an ideal target for such retaliation.  On the other hand, the allegations in the indictment -- that Stewart conspired with her translator to let Rahman pass messages to his terrorist group, with Stewart all the while pretending to be engaging in the conversation; falsely agreeing to the terms of the Special Administrative Measures when she had no intention of doing so -- are quite specific, and in this instance, proven beyond a reasonable doubt to a jury.

It seems to me that criminal defense lawyers should want to hold Stewart at least partly responsible for abusing her role as one of them, regardless of whether that conduct harmed anyone.  It wasn't in the line of practicing law anymore, and it does hurt other criminal defense attorneys who must now be even more careful.

UPDATE: My friend Kevin Heller responds at Opinio Juris, disagreeing with me regarding the appropriateness of Stewart's conviction for providing material support.  While conceding that Stewart did falsely promise to abide by the SAMs, Kevin contends that Stewart was merely acting in civil disobedience.  He closes with the observation:

[W]e should not blame the victim for the U.S. government's ongoing campaign to intimidate defense attorneys who have the courage to defend terrorists. (Just ask Lt. Commander Swift.)  Those efforts are not surprising; having failed again and again to convict alleged terrorists in regular courts, the government has obviously realized that its chances for success will go up if skilled attorneys are afraid to defend terrorism cases. Such calculated disdain for defense attorneys -- and for defendants' right to counsel -- is deplorable.

I'll agree that what happened to Cmdr. Swift certainly doesn't look good.  But I think there's a significant difference between his situation and Stewart's.  Cmdr. Swift won his case before the Supreme Court and did not lie in the process.  As even Kevin concedes, Stewart violated 18 USC s 1001.  Moreover, Stewart's indictment didn't stem from the fact that she represented Rahman in his World Trade Center bombing trial.  The government won that trial, Rahman was sentenced to life, and Stewart did her job, representing Rahman zealously at that stage.  What got Stewart into trouble was that subsequent to Rahman's conviction, she went to visit him, purportedly for the purpose of "representing" him, but in an attorney-client meeting that was a sham.  True, we know this only because of the SAMs, but I guess I don't quite agree with Kevin that the SAMs were implemented for the *purpose* of undermining the ability of criminal defense attorneys to represent their clients.  That may be the effect of the SAMs, but I think it's at least plausible that for some high-risk defendants -- such as the Blind Sheikh -- the SAMs are an appropriate control mechanism to ensure that they not pervert legal representation to carry out more of a terrorist agenda.

I will grant that it's not implausible to think, as Kevin argues, that the jury may have convicted Stewart on the material support charges not because the government proved its case beyond a reasonable doubt, but because of extraneous factors, including fear, dislike of abrasive criminal defense attorneys who represent terrorists, or a general post-9/11 anxiety.  Let's say that's true.  Then, of course, Stewart should not have been convicted of the material support charge.  But I still don't see how that absolves her of making things more difficult for criminal defense attorneys.  It would be at best a childish act to protest against the SAMs by pretending to communicate with her client when in fact it was the translator speaking with Stewart.  She may not have intended for the Blind Sheikh's message to further a specific terrorist act, but it doesn't seem like a very effective bit of civil disobedience if it's meant to be concealed from the government.

In short, the way I see it, Cmdr. Swift absolutely did his job and should be commended for his fine representation of his client; Stewart absolutely did her job during the trial and should be commended for her representation of her client (even though she lost); but the events that were the subject of her conviction -- even granting that the jury's implicit finding on her mental state perhaps shouldn't be accorded significant weight -- weren't legal representation, they were an abuse of legal representation.  Did that warrant a 20 year sentence?  No, I agree with Kevin that 20 years would have been an "absurd" sentence.  But 28 months?  I'm with my co-blogger Bobby (in the comments) that 28 months doesn't seem absurd.

Comments

[Bobby Chesney]

I've seen a few articles in recent days suggesting that the prosecution of Stewart somehow should be construed as an attempt to discourage representation of defendants in terrorism cases. In keeping with Tung's comments, I just don't see it that way; at the end of the day, this was about enforcing the SAMs, the violation of which in this instance also happened to redound to the benefit of Egyptian Islamic Group. As Tung says, it's just not a laudable example of zealous advocacy. The relatively light sentence - against the backdrop of a roughly 10-year median for convictions under 2339A - seems to fairly addresses the concerns that had been raised in her case.

[Kevin]

I appreciate Tung's thoughtful response to my post, with which I generally agree. I am not convinced, however, by Bobby's comment. If this was, "at the end of the day... about enforcing the SAMs," the government would not have prosecuted Stewart for materially aiding terrorism (which they continued to do even after their initial indictment was thrown out) and recommended a 20-year sentence. I also stand by my contention that the SAMs are specifically intended to undermine the attorney-client relationship; what other purpose could they have, unless -- as I pointed out in my post -- you believe that defense attorneys are in the business of conspiring with terrorists?