Who Was Lynne Stewart Representing?

A person who represents himself has a fool for a client.

I was reminded of that maxim while reading an article on the Lynne Stewart conviction in the current issue of the American Criminal Law Review (ACLR). "The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend," Vol. 43, No. 1, Winter 2006.

Stewart was convicted last year of lending material support to a terrorist organization.  Does her prosecution and conviction spell the end of aggressive criminal defense?

The conviction arose from or her conduct during the course of her representation of Sheik Abdel Rahman, a 65-year-old Moslem cleric doing life plus 65 years for, among other things, conspiring to blow up the World Trade Center and for soliciting crimes of violence against Egyptian President Hosni Mubarek. Conditions of his confinement include a prohibition on communicating with his followers outside prison walls.

But he still has a right to counsel. So he was, and I presume remains, free to consult with counsel. He just can't use counsel as an intermediary to communicate with others. Ms. Stewart agree do do so.

Stewart's downfall was not in providing aggressive defense to the Sheik. Her downfall was letting her politics cloud her judgment. She has long spoken out in favor of "directed violence" as a means of combatting policy objectives she dislikes. When she represented the Sheik, she was, in effect, representing views to which she subscribed. Her judgment was clouded.

I find it far easier to represent folks with whom I share little common ground. All this prattle about "loving" your client and "walking in his shoes" obscures the attorney-client relationship. We defend folks in need and are their advocates within the rule of law. Hence our simultaneous roles as officers of the court and advocates.

Stewart became part of the case she was defending. She became a tool of the Sheik because it suited her private views. She let her representation of the Sheik become personal.

I was dismayed by the conviction of Lynne Stewart, but not terrified. This is not the beginning of the end of aggressvie advocacy. My tail has not shriveled and I do not sit whimpering in the corner during trial. But I do take pains to make sure my role as advocate remains simply that.

The ACLR piece is a good overview of the Stewart case, and of the challenges of representing defendants in cases in which the Government overreaches in terms of limitations on attorney-client communication. Its discussion of what to do when the Government asks you to sign a statement agreeing to these limitations is particularly useful.

Stewart's conviction is a sad event. But it is an event she brought upon herself by shedding her role as mere advocate to become a participant.

Comments

[Mike]

She went far beyond her role as an advocate. She was not convicted of "misbehaving" in a court, nor for actually defending her client. She served as his official spokesperson for non-legal matters, and for that, she was convicted.

I have no sympathy for her, and her conviction is not a doomsday warning.

[Mahan Atma]

I haven't thoroughly familiarlized myself with the facts of the case, but from what I know of it, I'm in strong disagreement with you guys.

For one thing, attorney relationship or not, it seems to me there's a serious First Amendment issue. Do you think her statement violated the Brandenburg test? I don't.

Second, I hesitate to have such a crabbed view of advocacy, at least when it comes to criminal defense. I've done an awful lot of things for the handful of clients I've had in my short history of practice. A lot of them had nothing to do with legal work per se; they were things a friend or ordinary human being would do. But that seems to me to be part of being a lawyer, particularly when your client is in custody.

I'm not privy to Stewart's motives for what she did - perhaps she's stated them, so I may be mistaken - but I've met her, and she seemed to me to be a good, decent person who doesn't deserve to be imprisoned.

[Mahan Atma]

"So he was, and I presume remains, free to consult with counsel."

As I understand it, Stewart was forced to cut a deal wherein her communications with her client were monitored by the government - so I'm not sure "free to consult with counsel" is entirely accurate.

One other thing -- the conviction of the interpreter is cause for serious misgivings about the fairness and wisdom of the jurors who passed judgment in this case.

[Mike]

. A lot of them had nothing to do with legal work per se; they were things a friend or ordinary human being would do. But that seems to me to be part of being a lawyer, particularly when your client is in custody.

True, but you don't run drugs or violate court orders when helping our your clients. That's the difference. After all, Lynne Stewart was not tried for calling her client's boss to tell the boss her client was in jail.

[Mahan Atma]

Stewart wasn't running drugs either; and I don't know whether there was a court order prohibiting her conduct, but if there was, it was arguably unconstitutional if it covered the conduct in question.

What do you guys think about the conviction of the interpreter? I find it highly disturbing, personally. If you agree, don't you think that calls into question the fairness of the jury?

[mythago]

A lot of them had nothing to do with legal work per se; they were things a friend or ordinary human being would do

If they are things that would get an ordinary human being in trouble--such as relaying messages to terrorists--why be upset if the lawyer gets in trouble for doing them? If Stewart had represented a Crips kingpin, and had passed on that kingpin's messages to this underlings regarding drug sales and hits, I don't think we'd be arguing at all.

[Mahan Atma]

^^^ But a lawyer-client relationship should be worthy of a more protection, not less.

For example, we deem attorney-client communications protected.

But in any case, when you say "I don't think we'd be arguing," well I AM arguing!

Tell me again why such statements aren't protected by the First Amendment. Do they violate the Brandenburg test, and if so, how?

[Christopher King]

Norm, why did you cut my referral to Attorney Gilbert's interview on this? I think her conviction indeed represents the onset of a slippery slope and agree that her communications should enjoy more, as opposed to less, privilege.

http://cleveland.indymedia.org/news/2005/02/14680.php

You know I always support you, brother, read the last comment here about "the larger picture."

http://www.dailykos.com/story/2006/4/22/14576/1333

[Mike]

Chris, Norm didn't delete your comment: I did. It was off topic. As you know, we are always happy to provide a forum for commenters. But sometimes a comment is so far afield that it must go. So, please continue commenting. I'm pretty sure it was the first (of your dozens of comments) that were deleted.

[markm]

Why don't we start by considering a non-political case: You are interviewing a client who is alleged to have robbed a bank of $2 million, with three unknown partners. He leans over and whispers that if you want to get paid, you have to contact his partners, tell them where the loot is buried, and get his share. IANAL, but I'm pretty sure that "helping" your client in this matter is both an ethical and a legal violation.

The facts of the Stewart case may be far less clear-cut than this, but I have not yet seen anything I could understand that explained the difference.

[Christopher King]

Thanks, Mike, no sweat. I was kinda' reachin' there :)

I won't post it here, but my question of the day 25 April post may interest you.

Cheers,

-c

[Anonymous]

There's an interesting article on Lynne Stewart and the Center for Constitutional Rights that was put out by Capital Research Center.
Here is the Web address:
http://www.capitalresearch.org/pubs/pdf/OT0906.pdf