Should Lynne Stewart Have Been Convicted?

Over at National Security Advisors, my friend Tung Yin has a post about the sentencing of Lynne Stewart to 28 months in prison for allegedly conspiring with Sheikh Omar Abdel Rahman to help him transmit messages from prison to his followers. Though Tung praises the judge’s refusal to impose the absurd 20-year sentence the government requested, he seems to think that the conviction itself was appropriate:

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.

With due respect to Tung, I strongly disagree. First, my outrage at Stewart’s conviction and sentence is in no way muted by the fact that she was convicted “beyond a reasonable doubt.” Though I have great faith in juries generally, I don’t in this case, which involves a criminal defense attorney (strike 1) who is outspoken about the need to zealously defend individuals accused of the most heinous crimes (strike 2) charged with helping a convicted terrorist plan further terrorist attacks (strike 3) in an atmosphere where the prosecution was continually allowed to discuss bin Laden despite his irrelevance to the case (strike 4). Under those circumstances, I find it very difficult to believe that the jury convicted Stewart because of the evidence, not out of fear. Had they convicted her only of falsely promising to abide by the Special Administrative Measures (SAMs), I might feel differently; she was clearly guilty of those charges. But convicting her of materially supporting terrorism by making the Sheikh available to his followers, ostensibly in violation of 18 U.S.C. §2339A, is quite simply ridiculous. As she testified at trial — testimony that an observer from the New York Law Journal described a “very effective” — she did not believe the press release on the cease-fire would result in violence or was intended to send the message that the guns were “in the third sand dune on the left.” Did Stewart’s deliberate refusal to go along with the SAMs go beyond zealous representation of the Sheikh? Most likely. But did she provide “material support” to the Sheikh’s efforts to pass messages to his followers “knowing or intending that they [we]re to be used in preparation for… a specific act of terrorism”? Not a chance.

Second, I in no way believe that defense attorneys should hold Stewart “partly responsible” for her predicament. Her only “crime” was refusing to follow the Special Administrative Measures — the U.S. government’s Orwellian term for reserving to itself the right to monitor Stewart’s conversations with her client. Given that the the SAMs are specifically designed to undermine attorneys’ ability to zealously defend their clients (unless you think that defense attorneys are normally in the business of aiding and abetting terrorists), Stewart’s act of civil disobedience should be praised, not criticized — especially given that her act has now, predictably, cost her both her license to practice law and her freedom.

Third, and finally, we 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.