Judge 'Thinking Very Hard' About Lynne Stewart Case

By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
January 30, 2008

A panel of federal appellate judges is struggling with the question of whether the First Amendment requires that the conviction of a criminal defense attorney, Lynne Stewart, be overturned.

At the end of oral arguments yesterday, the three-judge panel of the 2nd U.S. Court of Appeals appeared likely to ultimately uphold the jury's verdict that Stewart is guilty of passing on messages between terrorists.

"This is a very hard case," one judge, Guido Calabresi, said near the 90-minute mark of yesterday's arguments. "I'm thinking very hard."

What Judge Calabresi was deliberating was whether Stewart had intended to support a terrorist conspiracy and whether intent — and not just knowledge of the likely result of her actions — was necessary for her to be convicted.

The case has attracted the attention of lawyers nationwide. The crime involved Stewart's communications with one of her clients, Sheik Omar Abdel Rahman, who is serving a life sentence for plotting to blow up several landmarks in New York City. To prevent Rahman from advocating further violence, prison officials had required Stewart and the rest of Rahman's legal team to pledge not to carry messages on his behalf. Stewart broke that pledge. In one instance, she called a reporter in Cairo to announce that Rahman was urging a terrorist organization to withdraw from a ceasefire with the government of Egypt.

Stewart has said her goal was to keep Rahman relevant in Egyptian politics and improve his morale. That argument evinced little sympathy from the bench.

"You can have the intent of serving a client," Judge Calabresi said, "but if the means of furthering that intent are a conspiracy to kill people, than don't you have that intermediate intent as well?"

Of the three judges on the panel — judges John Walker and Robert Sack were also present — Judge Calabresi took the lead in questioning both Stewart's lawyer and the federal prosecutor.

Judge Calabresi compared the case against Stewart against a hypothetical prosecution of a journalist.

"Suppose a journalist from Al Jazeera had access to the sheik, got statements from the sheik, and doing his job as journalist" publishes that information, knowing it might inspire terrorists, Judge Calabresi asked.

For Stewart's attorney, Joshua Dratel, the answer was clear as to whether the journalist had committed a crime was clear: "If all you did was provide protected speech, it's not a crime," he said. The prosecutor, Anthony Barkow, had a different response. "That journalist," he said, "would be guilty."

Judge 'Thinking Very Hard' About Lynne Stewart Case

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