NEW YORK, June 28 (Reuters) - Outspoken New York criminal
defense attorney Lynne Stewart, now disbarred and incarcerated,
on Thursday lost a bid to reverse her 10-year prison sentence
for helping a suspected Islamist militant smuggle messages to
his followers from prison.
In a written opinion, three judges at the 2nd U.S. Circuit Court of Appeals expressed little sympathy for 72-year-old
Stewart, whose supporters had argued the prison term amounted to
a death sentence.
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," the 51-page opinion said.
Stewart, a longtime human rights lawyer, was convicted by a
Manhattan federal jury in July 2005 of helping her client, blind
Egyptian cleric Sheikh Omar Abdel-Rahman, contact the Islamic
Group in Egypt. This was a violation of the Special
Administrative Measures governing Abdel-Rahman's confinement.
Stewart was sentenced to 28 months in prison.
The Islamic Group is listed by the U.S. government as a
After her October 2006 sentencing, Stewart, standing on the
courthouse steps, said that she could serve the 28-month
sentence "standing on my head." The government also seized on
remarks she made in a television interview and at a press
"I'd like to think I would not do anything differently,"
Stewart told host of "Democracy Now!" Amy Goodman on Nov. 17,
2009. "I had no criminal intent whatsoever. This was a
considered decision based on the need of the client."
She later said she regretted what she had said and that her
comments had been misunderstood.
In 2009, after a government appeal, a 2nd Circuit panel sent
the case back to U.S. District Judge John Koeltl for
resentencing on the grounds that the initial sentence was
insufficient. Koeltl in July 2010 increased Stewart's sentence
to 10 years, four times what he had originally imposed.
The same panel of judges -- John Walker, Guido Calabresi and
Robert Sack -- issued Thursday's opinion.
Herald Price Fahringer, an attorney for Stewart, said he
would ask for the case to be reheard before the full appeals
court and that the issues it presents may warrant review by the
The opinion is a "terrible deterrent for people speaking out
in public," he said.
Fahringer had argued that comments Stewart made after her
initial sentence was imposed should not have been used to
increase her prison term or been taken as a clear-cut denial of
remorse for her actions.
"Cobbling together scraps of First Amendment doctrine and
dicta for support, she (Stewart) contends that she was punished
for what she said, and that such punishment runs afoul of the
First Amendment," the opinion, written by Sack, said.
The appeals judges praised Koeltl's reasoning in
quadrupling Stewart's sentence.
By taking Stewart's statements into account, Koeltl was
"determining the characteristics of the defendant, which were
legally relevant to a determination of the appropriate sentence
to impose on Stewart, through the contents of statements she
voluntarily and publicly made."
NO 'CHILLING EFFECT'
The opinion brushed aside any notion that her sentence would
have a "chilling effect" on free speech and said the government
can, in some circumstances, use what a person says in public
Nevertheless, the opinion said it was important to "again
emphasize" that courts cannot use any protected speech in
fashioning a sentence. The speech must, for example, be related
to "specific criminal wrongdoing."
The 2nd Circuit also said Koeltl had not punished Stewart
for her political beliefs and that he had "punctiliously"
followed its instructions in refashioning a sentence.
Abdel-Rahman was convicted in 1995 of conspiring to attack
the United Nations and other New York City landmarks, following
the 1993 World Trade Center truck bombing.
Stewart is serving her sentence at the Federal Medical
Center prison in Fort Worth, Texas.
The case is US v. Lynne Stewart et al, U.S. Court of Appeals
for the 2nd Circuit, No. 10-3185.
For Stewart: Herald Price Fahringer of Fahringer & Dubno and
Jill Shellow of the Law Offices of Jill Shellow.
For the government: Andrew Seth Dember, Assistant U.S.
Attorney for the Southern District of New York.
(Reporting By Basil Katz)
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