Lynne Stewart at Hofstra Ethics Conference "Lawyering at the Edge"

[[I will recap later tonight.  Short version: Stewart evaded the key facts.  Law students did a terrific job with their questions.  Hofstra must be proud of them, and I'm glad she spoke to them.  There was no spoon-feeding, cheerleading, or indoctrination.  There were lots of good, tough questions -- most of which were from law students.]]

Beginning in five minutes. [My comments will be in brackets. Comments by Lynne Stewart (LS) will not have brackets  I will be paraphrasing and using her actual words when possible.]

[Professor Roy Simon introducing LS by reading what the sentencing judge wrote about her background.  Per the judge, she repped poor, unpopular, disadvanaged; performed a public service to clients and the nation in doing so.  However, she aided terrorists.  She has been disbarred.  Conference organizers care about education of students.  LS speaking should be unique opportunity to learn.]

LS thanks Hofstra for standing up for free speech.  Some universities don't do that.  Ward Chuchill has been deserted by his university.

LS paused when she read that she was invited as a cautionary lesson.  That gave me pause.  But the govt has already sent the bigger cautionary lesson. When a brave lawyer like Ron Kuby won't take certain criminal defense cases, you have to wonder.  Are we preventing criminal lawyers from operating?

Talking privately to clients is primal to the attorney client relationship.  But now we have an exception to that relationship.  We cannot simply accept the govt's definition of what a criminal lawyer is.

When I was sentenced, 1,000 letters came in, from bigwigs and from prisoners alike.  Judge Koetel read each letter.  That's what led to the statement the judge made, that Professor Roy Simon quoted.

I can also say we've filed 350 page brief on appeal.  Govt filed 500 page brief.  Many issues are raised.  Govt basically reworked their summation but didn't answer the main problem: the huge weight of evidence that applied only to the co-defendants and not as to LS.  It was prejudicial.  It included huge images of Osama Bin Laden.

"Lawyering on the edge"  You don't always ask yourself that about what you do.  You more wrestle about what you didn't do.  [Note: Professor Simon will return to this comment in his concluding remarks.]  I urge the law students and lawyers as well to remember your personal statement on your law school app.  You didn't say you went to law school just to make money. Remember also criminal defense is the only part of profession that deals with your clients being locked up in cages.

I didn't like all my clients.  But you still do your best for them.

Sometimes you want to convince your client to take a deal.  But when the courts get too anxious for pleas, some judges want to push cases too fast.  But don't let them prevent you from providing effective assistance.   You might have to say "I haven't had a chance to provide effective assistance."  If you say that, the judge will be mad at you.  But we need to do more of that.

The lawyers in Gitmo are very constrained in their representation right now.  Lawyers can't discuss personal issues with the client now, by reg.  When that is happening, it's time to say "no more."

Josh Dretel represented David Hicks at Gitmo, and refused to proceed, because his representation had been so restricted.  Dretel did stand up.

In the final analysis my case deals with client-centered lawyering. [?!]  We are vulnerable as to what we can do now.  My client, Sheikh Omar, who was passed to me by Ron Kuby [Kuby yells: sorry!  Laughter]

We have an Islamo-fascist view, perpetuated by the press, but to sit down with him, . .   . .  Rahman has been diminished.  SAMs are for singled-out convicts.  He was singled out.  The SAMs were not court orders.  They were regs.  We three lawyers [Clark, Jabara, Stewart] were given "leeway" to do some lawyering.

[She suggests that Clark wasn't prosecuted because of his class advantages.]

I should have been more aware that the government will get you. Yes, I was client centered, and I'd do it again but do it differently.  This was no secret clandestine thing.  It [what she did for Rahman] was done openly.  [??]  The tapes showed we weren't surreptitiously.  Guards were listening in to the conversation.  That happens often.  So you do insulate the client from the prisoners.

Most lawyers don't see constitutional issues.  I say that about ethical considerations.   Be alert for them.  Make your decisions.  Stand by your decisions.  The line is there.  The govt can move that line.  They allowed me to go back in and waited for 2+ years to arrest me. 

Stand up.  We need people to stand up.  It's a time to stand up.  It may not be the underground railroad but we are under attack.  Please stand up.

[Question from Monroe Freedman: I referred to you as a cautionary warning.  You were apparently interviewing your client along with the interpreter.  The interpreter might have involved instructions to be given to a terrorist group that might kill.  You put on a show to make it seem you were asking questions.  In fact, you were taped.  You were taped as saying "I should get award for this performance."  One of my questions is that video taping a client conversation intrudes on Bill of Rights protections. The problem is that in the future, the govt will cite your behavior in defense of the intrusions.  You have done disservice to criminal defense to 5th Am and 6th Am -- illustrated by Kuby's prior statment that he won't take certain cases anymore.]

There was little time, so we had the interpreter talk directly to the client.  There was nothing untoward that was said between Yousry and Rahman.  [??]  I knew what would be said in advance, but didn't want guards to think it was improper [so I pretended to be involved in the conversation].  My remarks were unfortunate wisecracks.  It appears to be one thing [ie, what govt claimed].  My defense was full of "might have been's".  No violence happened.  I said to judge I had done disservice to the profession by allowing the govt to come in -- but I tell you that the reality it didn't happen [as Monroe described it].

[Question from Monroe Freedman: I referred to you as a cautionary warning.  You were apparently interviewing your client along with the interpreter.  The interpreter might have involved instructions to be given to a terrorist group that might kill.  You put on a show to make it seem you were asking questions.  In fact, you were taped.  You were taped as saying "I should get award for this performance."  One of my questions is that video taping a client conversation intrudes on Bill of Rights protections. The problem is that in the future, the govt will cite your behavior in defense of the intrusions.  You have done disservice to criminal defense to 5th Am and 6th Am -- illustrated by Kuby's prior statment that he won't take certain cases anymore.]

There was little time, so we had the interpreter talk directly to the client.  There was nothing untoward that was said between Yousry and Rahman.  [??]  I knew what would be said in advance, but didn't want guards to think it was improper [so I pretended to be involved in the conversation].  My remarks were unfortunate wisecracks.  It appears to be one thing [ie, what govt claimed].  My defense was full of "might have been's".  No violence happened.  I said to judge I had done disservice to the profession by allowing the govt to come in -- but I tell you that the reality it didn't happen [as Monroe said].

[Question from crowd: You helped a killer with lies.  How can you claim to be principled?]

The jury acquitted that man [Larry Davis], because he acted in self-defense.

[Question (Hofstra student): is it dangerous to be ideologically aligned with your client?]

Rahman and I weren't aligned, although we both have "cautions" about the US govt. Rahman was more active in that regard. [Laughter] I repped Sammy the Bull and we weren't aligned.  I do believe in self-defense and have repped Black Panthers, but don't let my views interfere with the representation.

[Question (Hofstra student): Does your human bond with terrorist trump your personal morality?]

It happens that lawyers aid clients.  In this case, they constructed a house of cards that I provided my own client to the terrorist group by making the press release. If you're asking my moral position, the system cannot override the individual. 

[Student pushed on passionately about morality of aiding terrorist.]

Let's her finish.  I am worried about her [the questioner].

[Question (Hofstra student)  Why would you issue a request to withdraw the cease fire.  Doesn't that make your responsible?]

He didn't call off the cease fire. It was political speech.  He wanted the debate to continue.  [Ed note: this is one area where LS strays from the record.]

[Question from Prof. Roy Simon: You were convicted for making materially false statements to the government, not for organizing or political speech. You weren't organizing or challenging the regs.  The jury was thoughtful.  The ethics code says we as lawyers can't be involved in honesty.[Good question]]

We interpreted the SAMs to allow the legal work.  My intent was to "defy" the govt regs.  I admit with no small amount of humility and there would be no problem with this. I was wrong.

[Question Hofstra student: If a young lawyer asks you if he/she should do what you did, what you would say?]

I'd say that as a disbarred lawyer, I can't give advice!  [Big laughter]  I believe in the righteousness of what I did, but did not do it in the right way.  I would say to that young person, "let your conscience be your guide."  I never expected to be indicted.

[Question: You said the Arabic discussion wasn't untoward. They were terrorists, but you could not have known what was being said.   Aren't you taking a terrible gamble?.]

I trusted my interpreted implicitly.

[You were gambling!]

Do I have an anti-authoritarian streak?  Yes.  The govt lied about weapons of mass destruction. 

[Question from Hofstra student: Do you even recognize an "edge" that you can't go over?]

Bringing in coke for the client is over the edge.  I had a sense of what was over the edge. 

[question: is there any ambiguity?]

Sure there's ambiguity.  Is doing a press release part of lawyering?

[Question from Hofstra students -- who have all acquitted themselves very well! :  Do you feel  . . . .

[Question from Hofstra Professor: you haven't spoken about the fact that you got the jury instructions you wanted about your intent, and lost the verdict.  And even if no violence occurred from the request to withdraw from the cease fire, the govt can criminalize acts leading toward crimes even if the violence doesn't happen.]

[Concluding comments by Prof Roy Simon.  We've had three great days at this conference.  [True!] There is great danger from govt over-zealousness.  There is over-zeal in civil defense as well.  Even zealous lawyers must remain a distance and detachment from clients so they can serve clients.  [Comments about Enron and their lawyers not have enough detachment.]  [Long analogy about getting too close to the line.] [Note: don't let Roy Simon swing a tennis racket indoors.  Just trust me on that.] [For all of the clients LS could have served if she hadn't done this, that is a loss caused by her failure to think about what she was doing.] [Note: here, Simon was referring back to LS's comment that as a lawyer she didn't spend as much time thinking about what she did do as she spent thinking about what she didn't do.]] [Quotes about "caring too much" with the cients and going over the edge.]  {well done!}

Comments

[S.cotus]

I think that Stewart completely misunderstands the manner in which lawyers representing Gitmo detainee lawyers now proceed. This is probably why the lawyers representing them, by and large, are “old stalwarts” rather than “true believers.” In short, any time the government appears to be interfering with their representation they go to court to seek relief. They don't violate court orders, and they play by the rules so that they can be the ones enforcing the law.

In fact, I am sort of annoyed that Stewart is even trying to put herself in the same category as them. But, of course, because we have a vibrant 1st amendment, she can. (Finally, David Hicks was represented by Col. Sullivan – a Marine reservist whose “day job” is heard of the MD CLU. So, it is doubtful that anyone can call him some sort of coward.) He represented Hicks professionally, and negotiated a beneficial deal for him. Unlike Stewart, Sullivan is extremely well-respected in military justice circles, so he was able to even go above the heads of the prosecutors to secure this deal. (So media outlets report.) Sure, it might not have the “principles” that Stewart thinks that she is espousing, but he actually did some real lawyering on behalf of his client. Not a vague cause.

[Walter Olson]

Thanks very much for posting this. I too was pleased to see the tough questioning by Profs. Freedman, Simon, and the students. I've added my two cents at:

http://www.pointoflaw.com/archives/004401.php

[Monroe Freedman]

Thank you, Mr. Olson.
The tough questions from Roy Simon and me were planned from the day we invited her; it's a standard part of our conference format. The many tough questions from the students would be a surprise only to the Yahoos who somehow thought that our law students are immature noodniks who can be manipulated and indoctrinated.
(I use the word Yahoo as introduced by Lemuel Gulliver; its not a reference to the internet server.)

[S.cotus]

Ah, so that is how "noodniks" is spelled.

[S.cotus]

Sorry for the repeat post, but I re-read your account, and now I am curious as to what Stewart's argument regarding Clark's "class" advantage was. Was it just "he is rich" or is there something more to it?

[John Steele]

The evidence is overwhelming to the point of being undisputed that while Clark and Jabara were involved with communications that literally violated the SAMs, when the Islamic Group hardliners needed to press Rahman for approval to withdraw from the ceasefire, those two lawyers drew a line and wouldn't do that. (Interestingly, Clark had been willing to publish Rahman's earlier call to abide by the ceasefire and had not been punished for that. An interesting and I think justifiable exercise of prosecutorial discretion.)

The Islamic Group's "secretary," Sattar, kept pushing until he found a lawyer who would do what the others would not: Lynne Stewart.

As part of her defense, she argues that all the lawyers had been doing this sort of thing for years. If true, that would help her with the intent element, would show that the government took a permitted practice and called it a crime, and that this was all legimate lawyering. Of course, this line of argument from her ignores the undisputed facts that dominate any reasonable analysis: the lawyers didn't all act alike and when it came down to helping the Islamic Group forge a consensus on withdrawing from the ceasefire, the other two lawyers drew a line that Stewart did not.

But, to continue Stewart's with argument as she presents it, she's also left with the problem that three lawyers who (she claims) acted identically were treated so differently. So she offers up an argument that Clark, the son of a Supreme Court justice and a former Attorney General himself, was treated leniently because of class considerations. It's utterly unconvincing, given the critical difference between the two: Clark drew the line when the request threatened bloodshed. Recall that this was all after the Luxor Temple slaughter where this very group had butchered dozens of tourists from all over the world. Calling for a withdrawal from the ceasefire was an incredibly dangerous thing to do -- and of all the lawyers in the scene only Stewart would do it.

[S.cotus]

That's it? Well, I guess I shouldn't have expected too much. I was thinking that she was arguing that others had "direct access" to certain decision-makers or something, but that wouldn't make sense.

I am one of those that see class as playing a role in criminal justice (heck, where I live, the police diligently guard community events which include free booze that is drank from open containers, but 10 miles away that results in a citation and/or arrest). Instead, I saw her prosecution as simply what it was: a prosecution of an attorney that became a true believer. There still are legal problems with the prosecution's argument, but I don't attribute any ill-motivate (beyond what they declare in public) to the prosecutors.

What is even stranger about this argument is that people could argue that her "class" resulted in a low sentence.

[John Steele]

Walter,

Thanks for posting and for responding to the issue. I think that Hofstra took a risk, but took a prudent risk that paid off.

Btw, there has been blogging coverage of Stewart's cryptic comment that she do it again but do it differently. Which begs the question of what "it" is. We know it can't be exactly what she did the first time, because she said she'd do it "differently," not that she'd do it "identically." My view, developed after many hours watching Stewart and reading about her, is that trying to grasp her psychology is a fool's errand. Much better to focus on her behavior. She's truly idiosyncratic.

[S.cotus]

Mr. Steele, I have found this controversy intriguing. As a lawyer, I am pretty sure if Stewart were to appear at Hoftra 1) she would give her usual complaints; 2) she would be harshly questioned; and 3) the reputation of Hofstra would not change. This seems to be what happened.

What I find strange is that most or all law schools invite controversial speakers, and nobody cares. Was the hubbub really just a manifestation of Hofstra’s low rank? After all, if NYU invited her, nobody would claim that NYU lawyers would go unemployed. Heck, NYU probably could get away with offering her a tenure-track position. (The beauty of which is that if she goes to jail for too long they would have cause to yank it from her.)

But why was there any doubt that given the opportunity, a law student audience wouldn’t ask her difficult questions? This is the kind of stuff that law students love to do. They can be as obnoxious a they want without fear of grade-repercussion.

From Scalia to Sharpton to Stewart whenever these people talk law students are just itching to ask them to justify themselves. From what I understand, Stewart seems to have performed the worse, because unlike Scalia she has no power or even presumed moral authority, and unlike Sharpton she really doesn’t want to convince anyone of her moral or intellectual authority.

[S.cotus]

Mr. Steele, I have found this controversy intriguing. As a lawyer, I am pretty sure if Stewart were to appear at Hoftra 1) she would give her usual complaints; 2) she would be harshly questioned; and 3) the reputation of Hofstra would not change. This seems to be what happened.

What I find strange is that most or all law schools invite controversial speakers, and nobody cares. Was the hubbub really just a manifestation of Hofstra’s low rank? After all, if NYU invited her, nobody would claim that NYU lawyers would go unemployed. Heck, NYU probably could get away with offering her a tenure-track position. (The beauty of which is that if she goes to jail for too long they would have cause to yank it from her.)

But why was there any doubt that given the opportunity, a law student audience wouldn’t ask her difficult questions? This is the kind of stuff that law students love to do. They can be as obnoxious a they want without fear of grade-repercussion.

From Scalia to Sharpton to Stewart whenever these people talk law students are just itching to ask them to justify themselves. From what I understand, Stewart seems to have performed the worse, because unlike Scalia she has no power or even presumed moral authority, and unlike Sharpton she really doesn’t want to convince anyone of her moral or intellectual authority.

[John Steele]

Scotus,

It's hard to explain what "erupts" and what doesn't. I think in this case it was in part a proxy for rehashing the Columbia invitation to the Iranian president; in part the genuine revulsion at a man who participated in the first WTC bombing and then in the "Bridges and Tunnels" bombing conspiracy, and then smuggled out a message to withdraw from a ceasefire; and in part the very particular and idiosyncratic personality of Lynne Stewart.