[Ppnews] Circuit Hears Stewart Arguments - Judges Consider Intent

[Political Prisoner News]

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Circuit Hears Stewart Arguments




Judges Consider Intent, Knowledge

<mailto:web-editor at nylj.com>By Mark Hamblett

January 30, 2008
Disbarred defense attorney Lynne Stewart's knowledge and intent when 
she passed messages from her imprisoned client to a terrorist group 
in Egypt was at the heart of intense arguments yesterday at the U.S. 
Court of Appeals for the Second Circuit.

Defense attorney Joshua Dratel, trying to win a reversal of Ms. 
Stewart's 2005 conviction for providing material support to a 
terrorist conspiracy, claimed that Ms. Stewart's release of a 
statement by imprisoned Sheik Omar Abdel Rahman to his followers in 
the outlaw Islamic Group was protected by the First Amendment.

But Anthony Barkow, an assistant U.S. attorney in the Southern 
District who was part of the government's team during the trial 
before Judge John Koeltl, told the panel that there was "abundantly 
overwhelming evidence" that Ms. Stewart and interpreter Mohamed 
Yousry "knew that what they were doing was wrong" when they passed 
messages between the Islamic Group and the sheik. The sheik was 
serving a life sentence for seditious conspiracy against the United 
States and was forbidden from communicating with the outside world 
from his prison cell.

Judges Guido Calabresi, John M. Walker Jr. and Robert Sack threw one 
question after another at lawyers for Ms. Stewart, Mr. Yousry and a 
third codefendant, Ahmed Abdel Sattar, who was convicted of engaging 
in a conspiracy to murder in the Middle East.

Ms. Stewart and Mr. Yousry were convicted of aiding that conspiracy 
by providing it with "personnel" in the form of the sheik, whom 
prosecutors argued was so powerful that his mere words could trigger 
an abandonment of a cease-fire and a resumption of terror attacks by 
Islamic Group 
(<http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1107783339001>NYLJ, 
Feb. 11, 2005).

The arguments yesterday occurred before hundreds of people, many of 
them supporters of Ms. Stewart, who nearly packed the ceremonial 
courtroom on the ninth floor of the courthouse at 500 Pearl Street.

Mr. Dratel, a solo practitioner, aggressively attacked the statute, 
<http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002339----000-.html>18 
U.S.C. '2339(a), within the context of the First Amendment. He also 
said that Judge Koeltl applied the statute in an unconstitutional 
manner because he "failed to abide by his promise to impose a 
specific intent requirement" when he charged the jury.

Ms. Stewart, who had walked into the courtroom smiling and nodding to 
supporters, watched from the counsel table as Mr. Dratel said the 
evidence against her amounted to no more than three meetings with her 
client over a two-year period in the Minnesota prison where he was 
held. He said she was charged for "isolated and sporadic conduct" in 
an alleged plot where no "violent acts were planned or occurred."

Judge Walker pressed Mr. Dratel to explain Ms. Stewart's motive for 
issuing a May 2000 press release, in which she allegedly said the 
sheik was withdrawing his support for the cease-fire.

Mr. Dratel insisted that the "cease-fire was not abrogated - it 
remained in effect." He insisted the sheik's statement said no more 
than it was time to "re-evaluate" the cease-fire because of the 
oppression and recalcitrance of the Egyptian government.

With no intent to "incite imminent unlawful conduct or violence," he 
said, the First Amendment protected Ms. Stewart's statements.

'Clear Repudiation'

Not so, Mr. Barkow responded.

He argued that Ms. Stewart communicated a "clear repudiation of the 
cease-fire."

When Ms. Stewart followed the initial press release by making it 
clear in a public statement that she was indeed speaking for the 
sheik, Mr. Barkow said the "reaffirmation" was "extremely powerful 
evidence," that she and Mr. Yousry had the requisite state of mind 
for a conviction under the statute.

During the first two hours of the arguments, Judges Calabresi and 
Sack returned repeatedly to the issues of knowledge and intent.

Mr. Dratel's First Amendment attack on the conviction prompted a 
hypothetical question from Judge Calabresi. He wanted to know if a 
journalist secretly visited the sheik and reported a similar message 
about terminating the cease-fire, could the journalist be charged criminally.

"Yes, your honor," Mr. Barkow answered.

"If that raises First Amendment problems I want to know where the 
line is," Judge Calabresi said. "I want to know whether, if that is 
indeed a crime, whether we can let a statute of this sort stand under 
the First Amendment?"

As applied to Ms. Stewart, Mr. Barkow said later, the statute 
"requires knowledge or intent and both are tied to the act, which in 
this case is a conspiracy to kill by making a co-conspirator 
available" to the terrorists.

Judge Sack tried to pin down Mr. Dratel, who repeatedly cited the 
U.S. Supreme Court case of 
<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0395_0444_ZS.html>Brandenburg 
v. Ohio, 399 U.S. 444 (1969), where the Court found that Ohio's 
criminal syndicalism law, which barred speech that advocated illegal 
activities, including violence, violated the petitioner's right to 
free speech.

"I assume that if your client flew to Egypt and said 'Hey, the 
cease-fire is off,' you wouldn't be arguing that wasn't a crime?" 
Judge Sack asked.

"I don't think that meets the Brandenburg" standard, Mr. Dratel replied.

"Are you telling me you don't think it would be a crime to leave 
Minnesota [where Abdel Rahman was imprisoned] and fly there and say 
'You are ordered to stop the cease-fire'"? Judge Sack asked again, 
adding later, "That's not advocacy, is it?"

Mr. Dratel insisted that the "material support provided cannot be speech."

'Slap on the Wrist'

With the appeal pending, Ms. Stewart, who was disbarred in April 
2007, has yet to begin serving a 28-month sentence, which the 
prosecution believes is far too low for the crime 
(<http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1161002124640>NYLJ, 
Oct. 18, 2006).

Mr. Barkow argued that Judge Koeltl abused his discretion in giving 
Ms. Stewart a "slap on the wrist."

Mr. Barkow received more than a sympathetic response from Judge 
Walker, who said Judge Koeltl "didn't sufficiently consider that she 
abused her position as a lawyer and lied to the government" when Ms. 
Stewart signed attorney affirmations promising to abide by the 
special administrative measures the Justice Department and the Bureau 
of Prisons imposed on the sheik to prevent him from communicating 
with the Islamic Group.

"There's a serious aspect to this case . . . that a lawyer is sworn 
to uphold codes of conduct and ethics and behave in a particular 
way," Judge Walker said.

He said that Judge Koeltl "in effect" nullified the terrorism 
enhancement in the sentencing guidelines "because there was no harm."

"Doesn't the judge have to at least account for the guidelines? It 
seems there was no consideration," he said, adding later, "We don't 
want total freewheeling judges just to make decisions that they choose."

- Mark Hamblett can be reached at 
<mailto:mhamblett at alm.com>mhamblett at alm.com. The Associated Press 
contributed to this report.



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