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Print This PageLynne Stewart Disbarred
Not surprisingly, New York has disbarred Lynne Stewart. She attempted to voluntarily resign, but the Court of Appeals held that disbarment was automatic because she was convicted of feloniously making a false statement.
I explain here why I believe Stewart’s conviction for materially supporting terrorism was unjust.
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http://opiniojuris.org/2007/04/25/lynne-stewart-disbarred/
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Professor Heller,
I am curious to know why you think it was unjust. Stewart admitted that she crossed the line, and her sentence was no where near her exposure.
at 11:47 pm EST Anon
Anon,
The post I link to has a longer explanation, but the bottom line for me is that, having followed the trial closely, I believe that Stewart’s only “crime” was refusing to abide by the U.S.’s special administrative measures — measures that I believe have no other purpose (and yes, I mean that literally) but to prevent defense attorneys from zealously defending clients that the Bush administration does not want defended. Stewart had no choice but to promise to abide by the SAM’s; if she hadn’t, she would not have been permitted to defend Abdel Rahman. So her “crime” was to privilege her ethical obligations as a defense attorney over her coerced promise to abide by restrictions on her representation that I believe are flagrantly unconstitutional, even if no court has so held. (No surprise there.) That is why I described her conviction as unjust, not illegal. And so I believe it to be.
I hope this clarifies my position — even if you don’t necessarily agree with it.
at 12:35 am EST Kevin Heller
Kevin, do you know when Stewart agreed to the SAMs in this case in 2000? Do you know when the Bush administration took office? Do you realize that the SAMs were adopted before the Bush administration took office? Do you think it’s possible that the Clinton administration adopted the SAMs at issue in Stewart’s case for the sole purpose of preventing defense attorneys from zealously defending “clients that the Bush administration does not want defended”? How did the Clinton administration know which clients the Bush administration (which didn’t then exist) would not want defended?
Given this kind of elementary confusion, one might wonder how closely you followed the trial.
at 11:24 am EST Thomas
Thomas,
Please, by all means, show me where in my comment or previous post that I said the Bush administration created the special administrative measures. Show me where I said the intent in passing them was to prevent attorneys from defending clients the Bush administration doesn’t want defended. Show me where I said they were designed for that purpose.
What I said is perfectly accurate: the only purpose that the SAMs serve is to prevent attorneys from defending clients the Bush administration doesn’t want defended. Why do I say that? Well, probably because the Bush administration is currently in power. Had you asked me in 1997 what the purpose of the SAMs were, I would have said — and did at the time in editorials — that their only purpose was to prevent attorneys from defending clients the Clinton administration didn’t want defended. Although the GWODA has been perfected by the Bush administration, the Clintonistas are in no way free from blame.
It is also worth pointing out that you clearly have little understanding of the history of SAMs. The Clinton administration SAMs were far less restrictive than the SAMs adopted by the Bush administration in 2001, because they did not allow the government to monitor attorney-client communications — the most offensive aspect of the measures. Don’t believe me? Here is a snippet of a Federalist Society white paper on the subject:
Given this kind of elementary confusion, one might wonder how closely you read that which you criticize.
at 6:05 pm EST Kevin Heller
Professor Heller,
Could you address my comment that Stewart admitted in open court that what she did was wrong. I fail to see how you can argue what happened to her was unjust when even she admitted that her actions were wrong, not just illegal.
Second, I don’t think its hard to say that a purpose of the SAMs is to keep lawyers from passing along communications from their cleints to fellow terrorists. Two separate administrations agreed that such actions needed to be taken. Granted, they disagreed on the scope, but not the prupose.
I just want to say, again, that all this focus on Stewart is misplaced. What has happend to some of the JAG officers who have defended GITMO people is a true tragedy, not what happend to a person who is basically a hack. For you to associate the two does a real disservice to the brave JAG officers who deserve the support and attention of international law types.
at 9:18 pm EST Anon
Anon,
I’m not trying to avoid your question, but I cannot find where Stewart admitted that she did something that justified either her conviction or her disbarment. The most specific reference I found is the following answer she gave in an interview that was (apparently) conducted during the trial:
That seems like a legitimate position to me — and the position that any ethical defense attorney would take. Stewart signed the SAMs in good faith, realized later that she could not zealously represent her client if she abided by them, and decided to break them. Perhaps she shouldn’t have signed the SAMs if she disagreed with them, but then she would not have been able to represent Abdel Rahman, depriving him of his counsel of choice and forcing him to settle for a defense attorney who believed that the restrictions were legitimate — not exactly the kind of attorney I would want if I was accused of committing a heinous terrorist act. I may question whether passing along the press release was necessary to counterbalance the government’s concerted campaign to demonize Abdel Rahman and poison the jury pool. To some extent, I do. But I can’t fault Stewart for following her conscience, especially when she knew that it would (and did) put her at great personal risk.
If you know of a stronger admission, please post or provide a link to it. I will then gladly address your question.
As to your second point, I agree that the JAG lawyers are far more heroic than Stewart — and far more deserving of praise (which I have continually pointed out on this blog). That fact, however, in no way makes Stewart any less of a victim of the Bush administration’s war against defense attorneys. Do you believe that the Bush administration’s SAMs are constitutional? Do you believe that Stewart, hack or not (and I don’t know many defense attorneys who know her work would agree with your description), intended to promote terrorism? I am genuinely curious to hear your answers to those questions.
at 11:27 pm EST Kevin Heller
Professor Heller,
Per your request, here is the article discussing Stewart’s admission at sentencing.
http://www.nytimes.com/ 2006/09/29/nyregion/ 29stewart.html?ex=1177819200&en=b17204b4c0c8b0d6&ei=5070
The very first paragraph reads
Lynne F. Stewart, the once brashly defiant radical defense lawyer who was convicted in a federal terrorism trial last year, has acknowledged in a personal letter to the court that she knowingly violated prison rules and was careless, overemotional and politically naïve in her representation of a terrorist client.
Again, I think 28 months for someone who admits they were careless in a terrorist case is not a really unreasonable sentence.
Also, Professor Heller, no one really thinks Stewart is a good lawyer. Admittingly, she is to be commended for accepting unpopular cases. But really, she was a realy blight on the profession.
at 9:14 pm EST Anon
At JURIST there was a link to her 9 pg. letter to the court as a pdf. doc. I found it quite moving. For what it’s worth, I’m wholeheartedly with Kevin on this one and am appalled anyone would have the temerity to claim that ’she was a real blight on the profession.’ That’s bullshit, plain and simple. There’s good reason she received support from the National Lawyers Guild, the Center for Constitutional Rights and the National Association of Criminal Defense Lawyers.
at 12:01 am EST Patrick S. O'Donnell
Anon,
With due respect, I think this sentence tells us all we need to know about your position on Stewart: “Again, I think 28 months for someone who admits they were careless in a terrorist case is not a really unreasonable sentence.” Being careless is not the same as acting criminally — especially when the allegedly criminal act is material support of terrorism (as opposed to intentionally violating the SAMs, which we all agree Stewart did, including her). Moreover, I find your implication that we should have special, more punitive rules for defense attorneys in terrorism cases downright scary.
As to your claim that “no one really thinks Stewart is a good lawyer,” Patrick’s response says it all. I can only add that I was a criminal defense attorney in Los Angeles for a number of years and have spoken personally to more than a dozen highly respected criminal defense attorneys about Stewart. Without exception, they praised her bravery and skill as an attorney — it takes a rare person indeed to defend the most despised in our society, such as Weather Underground bomber Kathy Boudin, Black Panther Willie Holder, Mafia turncoat Sammy “The Bull” Gravano, and so on. The worst thing that anyone ever said about her was that she was naive to think that defending the World Trade Center bomber would be no different than defending her previous high-profile clients.
Stewart, of course, has learned that lesson the hard way. But learned it she has, as the article that you selectively quote indicates. Here is a longer excerpt:
Those are the honest and impassioned words of a defense attorney who deserves praise and respect for her commitment to the difficult job she loved — not of a criminal who deserved to be prohibited from ever practicing law again.
I hate to use personal anecdotes to defend Stewart, which is why I think the list of supporters that Patrick cites is so important. But I know what I know — and I know that very few members of the defense bar believe that Stewart was a “blight on the profession.” Do you care to defend your statement? Do you have first-hand knowledge of her reputation? Second-hand? Are you a defense attorney? With due respect, you sound like a prosecutor who believes that he or she knows what’s best for the defense bar. I have always been skeptical of such people; if you haven’t defended the despised yourself, it’s easy to sit in judgment of the difficult choices that ethical defense attorneys have to make every day.
at 2:41 am EST Kevin Heller
Professor Heller,
First, I want to respond to a few of your statements that distort my position. I do not think that “we should have special, more punitive rules for defense attorneys in terrorism cases.” I do think, however, that if Stewart would have been, in her own words, “careless” and “overemotional” in a RICO or drug case, then her punishment should have been lighter. Why? Because the harm that she could have caused would, in all liklihood, have been much less.
Stewart, again in her own words, was “careless” in a case involving security and a terrorist with a significant international following. If there was any time not to be “careless,” this was it.
Second, as far as anecdotal evidence is concernced, I fully admit that reasonable minds can differ based on their point of view. I respect your anedoctal accounts. However, I am not a member of the prosecution bar, but I can tell you that prosecutors respect good defense lawyers regardless of their clients. Simply put, most prosecutors can appreciate the role identity that defense lawyers take. However, Stewart was not respected for reasons far beyond her clients. In your logic “I (too) know what I know,” and I know that she was not respected in the field.
Next, I recognize the fact that she was supported by many important groups that aim to uphold the workings of the defense bar. However, as this discussion has shown, supporters of Stewart simply refuse to engage in the unique facts of her case. Rather, she was supported as a symbol of the profession against the excesses of the Bush administration. Personally, I feel that the Bush administration has gone too far vis-a-vis terrorist and their right to counsel. However, that provides no excuse for what Stewart did. Simply put, people like you have choosen the wrong symbol for this administrations excesses.
Rather, the proper way to deal with her objections to the SAMs would have been to challenge them in a court of law, not to unilaterally brake them, as Stewart did. Moreover, it has always been unclear if Stweart broke these rules out of a sense of serving her client, or if she was, again in her own words, careless. Please note, Stewart doesn’t say “I broke the SAMs in an act of civil disobediance;” rather, Stweart says that she was careless in braking the SAMs. That’s a key point that, again, you overlook in your complete revulsion to a factual analysis.
In this vein, I want to point out that you still consistently refuse to engage in the actual facts of the case. Stewart admitted that she acted carelessly. Stewart admitted that she was overemotional. In contrast, the JAG officers who should be getting our attention have not acted carelessly, they have not let their emotions get in the way. There biggest problem is that people like you lump them in with, I will say it again, hacks like Stewart.
at 12:49 pm EST Anon
I have enjoyed this debate. I thought I’d mention that we’ve been debating this issue over at Legal Ethics Forum, and have used Kevin Heller’s arguments as grist for our discussion there.
at 3:44 pm EST John Steele
As mentioned over at Legal Ethics Forum, I’ve come across an excellent article that helps put the Stewart case in the proverbial big picture: Tamar R. Birckhead: ‘The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend’ (Berkeley Electronic Press, ExpressO Preprint Series, 678, 2006: http://law.bepress.com/expresso/eps/678). I accessed this as a ‘working paper’ because I don’t have access to either LexisNexis or Westlaw. Those that do can get the published version: ‘The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend,’ 43 AM. CRIM. L. REV. 1 (2006).
at 1:33 am EST Patrick S. O'Donnell