The Second Circuit’s Holiday Message To Lynne Stewart

When the 2d Circuit remanded Lynne Stewart’s sentence to SDNY Judge Koeltl, with directions that he decide whether she committed perjury, and then take that into account in his sentence, there apparently was a nagging sense that the decision’s 191 pages failed to adequately express their desire.  So, according to this New York Law Journal story on December 24th, the decision was amended.


A majority told Judge Koeltl to make a finding on whether Stewart committed perjury at trial and examine in greater detail her abuse of her position as a lawyer — two factors that would both increase the sentence and help the circuit evaluate whether it was reasonable. But new language was added Wednesday at the end of the amended opinion requiring Koeltl to revisit the terrorism enhancement in the federal sentencing guidelines “and take that enhancement into account” — which could add years to Stewart’s sentence.

As was already brutally clear, dissenting Judge John Walker was not happy about the 28 month sentence.



The decision not to impose the enhancement had angered Judge John M. Walker Jr., who said in dissent in November that he was “at a loss” for “any rationale that could reasonably justify” a sentence he called “breathtakingly low.”

Not that Judge Walker was trying to micromanage Judge Koeltl’s sentence, even when he feels compelled to express his displeasure with the substantive decision as to what the appropriate sentence would be.
 
It was already obvious from the original decision that the Circuit was telling Judge Koeltl that it found his failure to decide the question of whether Lynne committed perjury in testifying in her own defense error, the implication being that she lost at trial, the jury rejected her testimony as credible, and she should therefore be given a higher sentence to accommodate this. 

While it’s hardly necessary that the sentencing court, even given the conviction, reach the conclusion that Lynne’s testimony was perjurious, rather than a view of her conduct based upon her understanding rather than the government’s, and it is similarly not inherently accurate to conclude that the jury’s conviction necessarily meant that they found her testimony to be false, there can be little doubt that Judge Koeltl got the Circuit’s message.  Whether he will cow to the Circuit is another matter, and whether Judge Walker’s “breathtakingly low” comment should influence the sentence, is another matter.

Fortunately, the amended decision does not include the language, “and we wouldn’t be too upset if the resentence included life plus cancer.”  One would think that the Circuit, in its original 191 pages, could have made its position sufficiently plain that it wouldn’t require an amendment, lest the judge believe that he’s got any choice in how harsh to be.  More importantly, one would think that the Circuit wouldn’t feel so desperately compelled to stick its nose into Judge Koeltl’s sentencing decision.  If it wanted a particular sentence imposed on Lynne, why not just say so rather than play these games.

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One thought on “The Second Circuit’s Holiday Message To Lynne Stewart”

  1. Peter Duveen

    Well said, SGH.

    “More importantly, one would think that the Circuit wouldn’t feel so desperately compelled to stick its nose into Judge Koeltl’s sentencing decision. If it wanted a particular sentence imposed on Lynne, why not just say so rather than play these games.”

    Is it customary to issue an amended decision? After all, they had years to issue the first one. One wonders what kinds of pressures may have resulted in this action by the Second Circuit. By the way, one must remember that Walker dissented in part. His views are not entirely representative of the majority in this case.

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