After being sentenced the first time to 28 months for refusing to honor rules rammed down her throat at the cost of speaking with her client, Lynne Stewart uttered the unfortunate words, that she could do the time “standing on my head.” So many who otherwise would never bow to the will of the government were on their knees this time, outraged that this terrorist loving idealogue was getting away with . . . refusing to genuflect.
So after a scathing reversal of her “good fortune,” with a direction to suck the blood out of her, Lynne was resentenced to ten years.” And the Second Circuit has affirmed the sentence, rejecting the argument that the increase from 28 months to 120 months in the absence of any substantive change, but rather due to the dissents urging of brutal harshness for her unspeakable crimes of affirming compliance with the special administrative measures (SAMS) and her post-sentence bravado.
The “stark inability to understand the seriousness of her crimes” addressed two fundamental problems. First, was Lynne’s refusal to submit to the SAMs was a crime of such seriousness. Second, was she punished by a four-fold increase in sentence for her “standing on her head” post-sentence statement a violation of her First Amendment rights.From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar. We cannot agree with her that the sentence imposed on her was “shockingly high” so as to warrant a finding of substantive unreasonableness.
The issue of the seriousness of Lynne’s conduct relative to the SAMs is one divided along political lines. For those who adore government regulation of things one would have believe the Constitution to forbid, such as the right to counsel, it’s a horrendous crime indeed. To fully appreciate the situation, lawyers for criminal defendants were required to agree to adhere to the abide the SAMs or be forbidden to meet with, to speak with, their clients.
The choice was sign off on rules that shouldn’t constitutionally exist or leave your client effectively unrepresented. Lynne signed off, not because she agreed, but because it was the only way to defend her client. Faced with a catch-22 (in its truest sense), Lynne did what she had to do to serve the highest purpose of a defense lawyer. That she falsely affirmed adherence to the SAMs was a lesser of evils, where she made the choice of putting the zealous representation of her client ahead of felching the United States government.
But the second prong of the appellate argument, that she was punished for saying that she could do the sentence standing on her head introduces a different constitutional right into the mix. While one defendant was given an extra six months for smiling during sentence, Lynne’s sentenced was increased by 92 months for expressing her opinion following her original sentence.
The Judge Sack’s opinion says this as an incomprehensible inability to appreciate the “seriousness” of her crime. Frankly, it borders on absurd that the judges, who aren’t quite that naive, thought the statement was so motivated. It was bravado following a sentence that could have been worse, to tell friends that she would survive. Lynne Stewart is a tough old bird, even though sit with her, to talk to her, is like being with a kindly grandmother.
But more importantly, as a defendant having been sentenced in a criminal prosecution, she remains possessed of the right under the First Amendment to express her opinion about her sentence, whether it appeases the government or not. Freedom of speech, even for a criminal defendant, is not limited by sounds that bring a smile to the face of appellate judges. Punishment for the exercise of free speech isn’t quite the way a court respects the First Amendment.
The First Amendment has seen a good deal of interest and concern by a broad swathe of the blawgosphere lately, ranging from maligned knitters to wars between humor websites catering to twelve year olds to SWATed conservatives. Will any voice be raised in support of hated terrorist lover Lynne Stewart’s right to speak without being sentenced to 92 additional months in prison?
This is when all the newly-sensitized fans of free speech have an opportunity to give the support they so graciously received, to be heard on the right for other that they whined was denied them. Where is the adoration, the trophies, the love notes asking for naked pictures, when the person who free speech was thwarted and punished (real punishment, not merely inchoate arguments of the harm that might have been) so harshly for it.
Will Regretsy be heard? Will the 2 million strong (as I’ve been forcefully told) Ravelry stand up? Of course, it’s not their life on the line, or their ox being gored, or their “fibre arts” at risk, so why should they care about the rights of anyone else.
Lynne Stewart hasn’t got a lot of friends in this nation who are willing to stand up for a person Bill Otis accuses of treason. There will be no popularity contests to be won. No trophies awarded. No admiring fans and adoring comments. There will only be one nearly-friendless, widely-reviled woman sentenced to 120 months as the price of expression.
I am still Lynne Stewart’s friend, and I will stand up for her, even if I stand alone.
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So you thought you could slip one by us. As if we aren’t paying attention. “Felch.” It’s a great word. Or at least it should be a word. I heard it for the first time here.
I had heard the word before, but had no clue what it meant. Marco Randazza explained it to me, so I am now able to use it.
This is a real question, not a criticism disguised as a question. According to the Second Circuit, “Most of the messages” that Stewart relayed to and from her client “related to the continuance of a ceasefire that an Egyptian militant group, al-Gama’a, had declared with regard to its violent efforts to overthrow the Egyptian government. The group sought Abdel Rahman’s advice on whether to continue the ceasefire.” So my questions are: (1) do you (or Stewart) take issue with the Court’s recitation of the facts; and (2) if the Court is right, how would abiding by the SAMs have deprived Abdel Rahman of a zealous defense?
Now I see why the abuse of Streisand effect weighed so heavily on your mind yesterday — not energy left for the cases where it really matters. Good to see you yesterday.
Ah yes, the secret hidden coded messages buried deep within facial statements that an incarcerated defendant asked his lawyer to publicly transmit. Of course, it was the public transmission of any messages that violated the SAMs, though the government, as is its wont, used its Capt. Marvel decoder ring to discern nefarious instructions in the coded messages and ascribe full knowledge of their hidden content to the messenger because she was his lawyer.
Adding to the delicious irony, I seem to recall a recent overthrow of the Mubarack regime that was widely applauded by our people and government. Freedom is in the eye of the messenger.
Good to see you too. Yeah, I have an unfortunate tendency to take a long view that makes me appear uncooperative.
Sorry, I don’t mean to be a bore–you no doubt know the record much better than I do and maybe you have rehashed this elsewhere. I guess my question is: how was Stewart’s violations of the SAMs related to what you say was her professional obligation to provide a zealous defense? That’s not at all clear, either from the Court’s opinion or from your answer to my comment. I am just responding to what I took to be the point of your post, namely that the SAMs were somehow at odds with Stewart’s other professional obligations. I can see that point if, for example, Stewart needed to check out facts relating to the case that her client told her. But is that what happened, or all that happened? The opinion refers to May 2000 letters that Abdel Rahman dictated to an al-Gama’a lawyer and to an al-Gama’a leader and that Setwart “smuggled … out of the prison.” I haven’t tried to confirm that what the opinion says is true, but maybe you can.
But for the SAMs, a lawyer of an incarcerated defendant passing along facially innocuous messages to people outside is both lawful and normal. We do it all the time, help them communicate to the outside world.
The connection is that the lawyers working on “terrorist” cases are required to sign off on the SAMs or they can’t see their clients. They will be denied access to the defendants, and the defendants denied access to their lawyers. The choice is “agree” to the SAMs or else. Had Lynne refused to sign off on the SAMs, she would have been denied access to her client and incapable of providing representation. So she signed the SAMs to gain access, not because she agreed with the SAMs but because she had no choice if she was to provide competent counsel and her client would have been denied his right to counsel had she not.
No, you read it for the first time here. 😉
Sir, I’m not sure that ‘it’ would compell anyone to do the right thing (reduce sentences to original and compensate for; lost wages, etc…) or (protest in the summer) regarding these two cases, as much as it would educate the masses (taxpayers / voters) about public servants (Judges) going rogue in American courts on their dime. ‘It’ being a Petition authored by you yourself of course. Example SJ & Change dot org for starters.
Or, we could simply advocate for reforms to include all defendants being gagged, cuffed & stuffed in the holding cell as they learn their fate via a monitor. God have mercy on the Mo-Fo that farts, burps or shits him / her self – which would certainly warrant the needle. Thanks.
Scott, what do you view as the best resources for someone wanting to educate themselves thoroughly about the case?
Pure spite and because he can on the part of Judge Sack. Good post as usual, Scott. Now, have to go look at “That’s right. We bad. Kinda” to feel better.
As if the “we bad” crap means anything. This is real. That’s nonsense.
A good place to start is at the website created for Lynne which includes the documents in the case.
So now we’re allowed to say “felch” here? Where will it end?
It’s not just the word but the implication based on the context. I learned that yesterday too.
I realize that for a defense attorney, the ability to speak with their client is important. But why, if the SAMS are so offensive (which I agree that they are) would an attorney sign them, particularly if they know that they would violate them in the course of providing a defense? Yes, I know that some attorney would eventually go ahead and kiss the government’s ring; but I would think, since the right is to ‘effective counsel’, which clearly means an attorney who signs such a document can’t be without violating the terms, that many attorneys would (rightfully) balk at being party to such a charade. None of the above is meant to be a reflection on Ms. Stewart, who clearly and conscientiously believed that the right to counsel meant breaking the rules; but I wonder if by being part of such a system, she in some way (and without meaning to) enabled it.
Two reasons: First, don’t sign and you can’t see your client. Second, until this happened to Lynne, most of us thought the SAMs were mere bureaucratic nonsense and didn’t take them very seriously. Just another government form to be filled out in triplicate, filed away and never heard about again.
Until this.
And now we know differently, but will continue to acquiesce.
This is a new story to me, and my jaw is a bit bruised after its collision with my keyboard, but has anyone challenged the constitutionality of these SAM regulations ? (I will be following your links, so if the answer is there, feel free to let me find it)
There is a blanket exception in the United States Constitution that excepts all things the government says are needed when dealing with alleged terrorists. You won’t find actual words to that effect, because it’s written in invisible ink so the terrorists can’t find it. But it’s there. Just ask the courts.