Rules vs. Standards
"Ahmadinejad's Demons"

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.