Fault Lines
23 May 2017
lynne stewart

Lynne Stewart: The Passing of a Real Lawyer

March 10, 2017 (Fault Lines) – Attorney Lynne Stewart passed away this week after battling terminal cancer. She was 77 years old. Media reports refer to her a “leftist” lawyer and a “radical” lawyer. Maybe those are accurate descriptions.

But a better description of Ms. Stewart is that she was a real lawyer.

Her journey from Harlem teacher to federal prisoner is a fascinating story. It combines the elements of a legal drama with those of an international thriller. Most importantly, it demonstrates the steel some lawyers possess when staring down the government. Her vigilant defense of an unpopular client landed her right where it landed him. A prison cell.

Stewart spent her career mixing it up in New York City courts for “small-time criminals and radicals alike.” She wasn’t just a protest lawyer. She was a badass lawyer. She won real cases for real clients in real trials.

One of Ms. Stewart’s most controversial clients was Sheikh Omar Abdel Rahman, the blind Egyptian cleric accused of plotting terrorist attacks in New York City. Some of his followers were involved in the 1993 World Trade Center bombing.

As clients go, the blind Sheikh was a real test. It’s one thing to talk about the Constitution at a cocktail party when someone asks a lawyer “how they represent all those guilty people.” Stewart lived that answer. Not only did she represent the most unpopular of clients, but at the worst of times. Her prosecution began in the shadow of the September 11 terrorist attacks and was the result of President Bush’s tough approach to terrorism cases.

To represent Rahman, Stewart had to sign “Special Administrative Measures” (SAMS). Scott Greenfield explains what they are at Simple Justice:

The SAMS are Special Administrative Measures that the government unilaterally imposes on prisoners when the government believes “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”

When a lawyer represents such a prisoner, the lawyer is required to agree to the SAMS or is denied access to the client.  No negotiation.  No discussion.  If you don’t sign, you can’t see your client.

As Scott points out, the government prosecuted Stewart for signing the measures but not intending to follow them. That may seem like mind-reading. Or maybe the government just knew that a real lawyer is not going to shed zealousness for government favor. Or wilt at the government’s demand. In fact, Stewart wasn’t the only one unwilling to let the federal government dictate her representation of a federal client.

Ironically (and unmentioned by Lynne’s detractors), former Attorney General Ramsey Clark was Lynne’s co-counsel in the case.  He too signed the SAMS.  He too violated the SAMS.  He wasn’t prosecuted.

After the September 11 attacks, the SAMS were secretly amended to allow Bureau of Prisons officials to tape attorney-client conversations. Those secret recordings revealed Stewart was … not really doing much of anything.

From [the recordings], the government learned that Lynne was present when Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar, who was acting as a law clerk, served as a conduit for the blind Sheik to communicate with the outside world, including composing a letter in Arabic that was alleged to be a message to his followers.  In 2000, Lynne released a statement from her client that “[withdrew] his support for a ceasefire that currently exists,” encouraging, according to the government, the Sheik’s supporters in Egypt to engage in violence.   Not a single act of violence was shown to have resulted from any of this.

Stewart was indicted for aiding and abetting terrorism and went to trial. Michael Tigar, her defense lawyer, saw this as far more than a terrorism case. It was a shot across the bow of the defense bar, and it was not well-received by Tigar or Stewart.

 …this case is an attack on the right to effective assistance of counsel. The indictment, announced in a blaze of publicity by General Ashcroft himself, seeks to chill the defense bar. The government’s theory would sharply limit the rights of lawyers to practice their profession and to represent their clients.

Stewart was convicted because everybody hates terrorism. She was sentenced to 28 months in federal prison. Only in federal court is almost two and a half years in prison considered a light sentence. She appealed. The government appealed.

The United States Court of Appeals for the Second Circuit was satisfied with the conviction, but not the sentence. You might remember those advisory guidelines.

Advisory. As long as the sentencing court does what it’s told. At re-sentencing it was much harsher, imposing a 10-year sentence.

After serving about half of the sentence, Lynne Stewart was released from prison to battle cancer outside the prison walls. She lost the battle this week at her home in Brooklyn.

Stewart’s saga made her a polarizing figure. That says a lot more about society than it says about her. She spent a lifetime battling the government for the poorest and most unpopular of clients. At the height of that war, she crossed the government for the final time. They took her out of commission.

The job of a criminal defense lawyer can be perplexing. There is a responsibility to zealously fight for those who do things most people can’t stomach. There is a duty to sow disorder in the very system we rely on every day. Beliefs are set aside to fulfill an obligation to people who often neither deserve nor appreciate it.

Lynne Stewart was the real deal. Over decades of legal work, she represented the worst of the worst, and did it as well as the best of the best.

Judge John G. Koeltl, who presided over her 2005 trial, initially sentenced Ms. Stewart to about two years in prison. He described her in heroic terms, saying her representation of the poor, disadvantaged and unpopular provided a “service not only to her clients but to the nation.”

She was completely unafraid of the government and completely committed to her clients. Being a real lawyer takes a lot more than just a law degree or a law license or a law office. It takes being like Lynne Stewart.

5 Comments on this post.

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  • Richard G. Kopf
    10 March 2017 at 1:37 pm - Reply

    Josh,

    Like many “movement” lawyers, Ms. Stewart lost her way. Despite your passionate post, it is my opinion that no young lawyer should use Stewart as a role model. All the best.

    Rich Kopf

    • shg
      10 March 2017 at 1:51 pm - Reply

      You would have liked her, Judge. Lynne was a remarkably practical woman, and a pleasure to be around. And she was never afraid to be a lawyer.

      • Richard G. Kopf
        10 March 2017 at 2:11 pm - Reply

        SHG,

        I have no doubt I would have liked her. Had I known her, we would have had a beer together at my invitation. I would have gently talked about the practical reasons for firm boundaries between lawyer and client. All the best.

        Rich Kopf

        • Greg Prickett
          10 March 2017 at 8:40 pm - Reply

          Judge, I haven’t researched this for the legality of an SAM agreement, but I am vehemently opposed to any system that allows the government to have audio and video surveillance of attorney-client communications, that would purport to allow the government to deny a defendant of legal representation unless that lawyer waives legal rights of the defendant.

          As far as I’m concerned, the government can either allow the defendant unfettered access to counsel, or they can drop the case.

          Otherwise, the government is allowed to ignore the Sixth Amendment.

          If you are going to allow that, you don’t need to have a trial, nor a judge. You can just stick the defendant in a cage for as long as the government wants to do so.

  • Mario Machado
    10 March 2017 at 4:52 pm - Reply

    That re-sentencing transcript was a tough read, especially knowing from the start that a 10 year BOP sentence would be pronounced. It was a sad coda to Stewart’s case and career as a true criminal defense rebel.