A rather lengthy criminal prosecution in a Manhattan federal courtroom is
nearing its end after having begun in June 2004. It has notoriety if only
because the lead defendant is a well-known (at least in New York City) and very
capable criminal defense attorney. Her name is Lynne Stewart, and even though
she's not on trial for her life, most certainly her professional career hangs in
the balance.
I decided to focus on Ms. Stewart (and her co-defendants, whom we'll get to
momentarily) before a verdict is recorded because it doesn't seem that these
observations are in any way dependent upon the outcome. Rather, the spectacle
that has unfolded in this case resulted from the federal government indicting
her because she was doing her job. Or was she plotting against others on behalf
of a client who is a convicted terrorist and will never see the light of a free
day?
Ms. Stewart defended Sheik Omar Abdel Rahman, the supposed mastermind behind
plans to destroy some New York landmarks. He was convicted of criminal
conspiracy several years ago in the same building in which the present trial is
going forward. Ms. Stewart has remained his lawyer until mid-2002 for not only
appellate purposes but also to serve as an advocate in connection with his
prison conditions. Apparently he speaks no English, is blind, is diabetic and
has been subject to indefinite solitary confinement.
During this time, too, the Bureau of Prisons issued rules that restrict
communications by certain prisoners to the outside world. They're called SAMs:
special administrative measures. In order for lawyers like Ms. Stewart to confer
with prisoners like Abdel Rahman, she is required to acknowledge in writing that
she (or those with whom she works) will not serve as a conduit in order to
broadcast or pass prisoner messages to others. The reverse is also true; the
lawyer and her staff are prohibited from passing information to the prisoner
that he is otherwise restricted from obtaining.
Ms. Stewart signed off initially and intermittently thereafter as a condition
of her ongoing visits and telephone conferences with her client. The same was
true of a paralegal and interpreter, both of whom worked for her and who also
stand trial on charges of aiding or abetting terrorism as a result of violating
the SAMs. Predicates for the violations appear to be providing Abdel Rahman with
either letters or news reports regarding events in the Middle East, particularly
in Egypt. Also, Ms. Stewart is accused of speaking with a Reuters reporter,
disclosing that her client withdrew support for a cease-fire between the Islamic
Group and the Egyptian government following a tragic terrorist incident at
Cairo's Luxor in 1997.
Indictments of lawyers, particularly those who practice criminal defense, is
hardly novel. Supposedly, they are often targeted in the southern reaches of
Florida for allegedly laundering the tainted money of their clients. Sometimes
they get too close to their clients in financial scams that eventually draw the
attention of postal inspectors, securities regulators or the IRS. And on other
occasions, they are accused of stealing from a client's trust account.
But what is the appropriate response when a lawyer is left to choose between
being an advocate for her client and meeting the conditions that arguably
restrict a person's right to counsel or otherwise impinge upon the privilege of
confidentiality in attorney-client communications? Even more vexing is the
prospect of the federal government's awesome power unleashed upon you if opting
to serve your client rather than the government.
No lawyer should have to suffer the ignominy of FBI agents serving a search
warrant upon his or her law office, as did Ms. Stewart. Or being escorted from
that law office in steel bracelets, as did Ms. Stewart. And perhaps the
overwhelming majority of criminal-defense lawyers will never incur such
indignities in their professional careers. But there is always the possibility
of that one client walking through the door and in whose way the government will
stand like a bully during legal representation.
Ms. Stewart has been flagged as having a long record of taking on unpopular
causes, associating with incorrigible types whose civil rights have been
trampled and representing notorious individuals. If there is a way to define a
heroine or champion by example, then she fits the bill. Yet, isn't this client
characterization applicable to most criminal defendants? Their misdeeds, if
believed, precede them. Society pre-judges their guilt, as if sneering at one's
constitutional right to the presumption of innocence. No one would dare share an
elevator with that person, assuming he wasn't already in pre-trial detention.
Anyone who engages in criminal defense is necessarily defending civil
liberties.
And then there is the second side to this coin. Although conceivable, it's
hard to fathom someone of Ms. Stewart's ilk plotting to undermine the security
of this, or any other, nation. Lawyers are obliged to report future criminal
activity or fraud upon the court upon learning of that prospect from a client.
Was she party to some diabolical scheme, by simply engaging as a messenger?
Violence is universally prohibited, no matter the venue. But what is the
difference between the spoken word and conversation that could be interpreted to
incite mayhem or destruction? Is such a thing even subject to definition?
Perhaps the Lynne Stewart trial can be distilled as follows. (If for no other
reason than the trial record already exceeds 9,000 pages.) One can argue that
she's a criminal defendant because the federal government squares certain
communications as being incendiary. Maybe Ms. Stewart would even concede that,
in a most technical way, she violated the SAMs but that her actions were not
indictable, that her communications between the outside world and a convicted
terrorist were simply innocuous.
The distance between counsel's seat and the chair occupied by his client is
negligible. As this case illustrates, a defense lawyer has quickly gone from one
to the other. A gap without proportion remains, leaving unresolved a lawyer's
understanding of when the client's communication ceases to be privileged and
becomes actionable to the detriment of his legal advocate.
(Mr. Sindler is a criminal-defense lawyer based in Pittsburgh. An
occasional guest on CourtTV, he is scheduled to appear on that network December
20, 2004 during its 9:00 - 11:00 a.m. program
schedule.)
