The Second Circuit has decided the Lynne Stewart appeal, and at 191 pages,  it’s a doozy.  The majority decision was written by Judge Sack, with Judge Calabresi writing in concurrence and Judge Walker both concurring and dissenting. 

The gist of the majority is that Lynne must surrender to serve her sentence of 28 months forthwith, while the case is remanded for resentence (which strikes me as a bit odd) for Judge Koeltl to decide whether she committed perjury, a determination he did not make at the original sentencing, then consider how that would impact the guidelines and sentence her with that as part of the mix.
Neither Judge Sack nor Calabresi suggested that Judge Koeltl’s sentence was otherwise substantively unreasonable.  Indeed, Judge Calabresi was downright effusive toward Judge Koeltl’s diligence in the handling of this case.

Judge Walker was another story.  He found the sentence imposed unacceptable, much like Andy McCarthy at NRO.

Yes, the sentence — that’s the interesting part. The court has sent Stewart’s case back to the trial judge for reconsideration of her absurdly short 28-month jail term (after the government asked for 30 years). The sentence has divided the appellate panel. All three judges agree that the sentence needs to be reconsidered. But two judges, Sack and Calabresi, seem to be narrowing the complaint down to whether Stewart committed perjury at her trial, which — if she is found by the sentencing judge to have done so — would call for a modest increase. In dissent, Judge Walker’s point is that a 28-month sentence for the terrorism-related offenses Stewart committed is a travesty whether or not she committed perjury.

Fortunately, not everyone who utters the word terrorism necessarily resorts to hysterics or hyperbole.

It’s not surprising that the conviction was affirmed, as the appellate battle was really directed to sentence.  I suspect that Judge Koeltl’s failure to decide the perjury issue was to avoid rubbing salt in the wound, not to mention that directly conflicting testimony doesn’t imbue a judge with the power to figure out who was telling the truth.  It’s one of the most difficult and painful decisions a judge can make, and why make it if it isn’t going to alter the outcome?

Still, the Circuit has ordered him to do so, and he most assuredly will.  Regardless of which way he comes out, little will change.  Lynne will be in a federal prison (it’s unlikely that a convicted “terrorist” will be designated to a camp) and a few more months, should it be imposed, won’t alter anything.  Our nation won’t be any safer from lawyers or terrorists, if you can tell one from the other.