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Boardman reports: "To understand how the law produced such an unjust result - a death sentence for a woman who, even according to the government, had not committed a capital crime - the case must be viewed through a political lens as well."

Imprisoned attorney Lynne Stewart. (photo: Channer TV)
Imprisoned attorney Lynne Stewart. (photo: Channer TV)

Police State Paradigm

By William Boardman, Reader Supported News

11 August 13


U.S. seeks death penalty equivalent for commission of thought crime. Lynne Stewart is dying of cancer, and the U.S. wants her to die in solitary.

n any advanced police state worthy of the name, it becomes an act of raw political courage for a judge to show compassion to a dying woman, for a judge to show mercy by granting a "compassionate release" despite the state's explicit demand for mercilessness.

Federal Judge John Koeltl, 68, faces just that choice as the result of the August 8 hearing in his court in the case of disbarred and imprisoned attorney Lynne Stewart, 73, who no one disputes is dying of cancer. Diagnosed with breast cancer in 2005, Stewart recovered to some extent after five years of treatment that included radiation and hormone therapy. In 2012, after she was imprisoned, doctors at the Federal Medical Center Carswell in Forth Worth, Texas, found that she had metastatic cancer that had spread to her lungs, lymph system, and bones. There is no cure. She has a life expectancy measured in months, not years.

The Bureau of Prisons is part of the U.S. Department of Justice. The Code of Federal Regulations provides for the possibility of "compassionate release" in section 571.60, which states, in part:

Under 18 U.S.C. 3582(c)(1)(A), a sentencing court, on motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment of an inmate sentenced under the Comprehensive Crime Control Act of 1984. The Bureau uses 18 U.S.C. 4205(g) and 18 U.S.C. 3582(c)(1)(A) in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.[emphasis added]

Even Her Keepers Consider Stewart's Circumstances "Extraordinary or Compelling"

In April 2013, Stewart filed a formal request for a compassionate release based on the "extraordinary or compelling circumstances" of her metastasized cancer. She has served almost four years of her 10-year sentence.

The warden and medical staff at Stewart's prison approved Stewart's request, which was further supported by some 200 pages of medical documentation from her prison and private doctors.

Stewart's request was sent on to Washington, where it was denied in a one-page (three-paragraph) memorandum to the warden, dated June 24, from Attorney Kathleen Kenney, an assistant director and general counsel of the Bureau of Prisons in the U.S. Justice Department. Kenney has no known medical training and has had no known direct contact with Lynne Stewart. Her memo is an exercise in deception and dishonesty. Stewart has filed a formal request for reconsideration of the decision.

In her June memo, Kenney asserts: "We have carefully reviewed the documentation submitted with this request." She does not say who "we" is, nor does her memo offer any evidence that she is conversant with even the basic facts of Stewart's condition. On the contrary, Kenney describes Stewart's condition falsely, which might be a violation of legal ethics (and is certainly a violation of common ethics).

Kenney asserts that Stewart "has been responding well to treatment." As The New York Times reported August 6 in a relatively unsympathetic story, Stewart's attorney has filed court papers illustrating her client's condition: "having to use a walker to get around, and being placed in shackles, a belly chain and handcuffs when she is transported to an outside cancer center." Stewart's attorney, Jill R. Shellow, argues that this amounts to cruel and unusual punishment, which is unconstitutional.

Government Attorney Not Held Accountable for Falsehoods

In her memo, Kenney asserts - falsely - that Stewart "is ambulatory and independent in her Activities of Daily Living [sic]." Kenney also refused to disclose records that were used to support her decision.

Stewart's daughter, Dr. Zenobia Brown, is a hospice and palliative care specialist who also has a master's degree in public health. She described her mother's circumstances on "Democracy Now" (August 8):

I think anyone who has battled cancer knows that just being treated for cancer outside of prison is cruel and unusual. It is very difficult. It is trying physically. It is trying emotionally. There are some basic things, like, for example, when she's in prison and has sort of life-threatening low blood counts, sort of nothing is done. She has no place to go. There's no recourse. There's no one to call. There's no one to treat her. So she could, as she has seen her cell mates die horrible deaths with no medical care- so the difference is vast, meaning if she got a fever, we would take her to the emergency room, we would take her to a doctor. If she has pain, we will make sure she's not- I mean, she has metastatic disease to the bone-make sure that she's not having pain in the middle of the night; make sure that- she has, you know, pleural effusions, which is fluid on her lungs-make sure that she can breathe. You know, I mean, it's so basic. I mean, it's just humanitarian. We're not talking about, you know, sort of wild and outrageous treatments. It's just basic, compassionate care.

Is an American Prison Really Just a Modern Death Camp?

Also on "Democracy Now," Stewart's husband of almost 50 years, Ralph Pointer, had sharper words to describe the contents of Kenney's memo:

Lynne calls it a misstatement. I call it a total lie, because Lynne does nothing for herself. Everything is done for her. She sits in a bed. In a prison, you have to make your own bed. Lynne does not have to. She does not take long walks. The prison brings her food. Everything is done for her as she sits. And so, for them to say that she can take care of herself is just outrageous. And obviously she does not. She looks to have a walker. To walk around the visiting room is a chore. And, of course, in prison, they don't like you to be close, and so we don't walk, because she holds on to walk. And it's- for them to make a statement like that, that she's improving, and when we all know that her lungs are being clogged, this is dangerous, a dangerous situation, and the prison wants her dead. I don't call them "prisons" anymore; I call them "death camps."

Without offering any basis for her conclusion, Kenney's memo says Stewart "is not suffering from a condition that is terminal within 18 months." This has every appearance of being a deliberate falsehood, as the available medical evidence contradicts it. Kenney offers no evidence to support the assertion. But without that falsehood, Kenney would have greater difficulty reaching her inhumane conclusion that "Ms. Stewart does not present circumstances considered to be extraordinary and compelling...."

According to published reports, Justice Department lawyers did not even try to defend the indefensible reality invented by the Bureau of Prisons. Instead of arguing facts, government lawyers argued that the law reserves all the power in this case to the executive branch, and this is a relevant if not complete argument. In essence, the statute gives prisoners the right to appeal to the director of the Bureau of Prisons for compassionate release, and gives the director sole discretion to forward it to a court for action or to deny it. In the case of a denial, the statute gives the prisoner a closed-loop option of seeking a reconsideration of the director's decision, by the director.

U.S. Position Is Essentially: Power Trumps Justice

As Assistant U.S. Attorney Andrew Dember put it in court: "It's our position that Ms. Stewart has no authority to make the motion she has made, and your honor has no authority to consider it. It is only the director of the Bureau of Prisons who has the authority.... It is purely discretionary."

Some reports suggested the judge had already indicated he agreed with the government. As the New York Daily News put it in its headline: "'Terror Lawyer' Lynne Stewart likely to stay in prison despite terminal cancer." Nasty as that headline is, it confirms Stewart's version of reality, not the Bureau of Prisons.

The journalistic guesswork was based on Judge Koeltl's question to Stewart's attorney: "If I granted your motion, I'd be violating the plain words of the statute.... Aren't you asking me to do something in plain derogation of the statute?"

But if that is legally clear to reporters, it wasn't legally clear enough for Judge Koeltl to decide it on the spot. Instead, he took the case under advisement, with no date set for a decision. He also noted that on July 15, one of Stewart's doctors revised Stewart's life expectancy downward, from 24 to 18 months, which is the current standard for compassionate release. And he suggested that could justify a reconsideration of the June decision.

Maybe the news media speculation is correct. Or maybe Judge Koeltl is playing for time in hope that the government will grant a reconsideration and make a motion to the court to release Stewart. Or maybe he's looking seriously at the law's validity, given that it creates an unchallengeable authority that violates the constitutional right to due process of law (5th amendment). Or maybe he's leaning toward attorney Shellow's argument that the Bureau of Prisons has violated the Constitution by imposing a cruel and unusual punishment (8th amendment). Or maybe we're headed for something entirely different.

At Its Heart, Stewart's Case Is Much More about Power Politics Than Law

To understand how the law produced such an unjust result - a death sentence for a woman who, even according to the government, had not committed a capital crime - the case must be viewed through a political lens as well.

Attorney Shellow hinted at this when she said of Stewart, "Her doctors, her warden, all the staff - everyone who deals with Ms. Stewart have urged that compassionate release should be granted. But for reasons that escape me, the central office in Washington chose to reject it."

And that's probably because the central office in Washington - the Office of the Attorney General - created the case in the first place. But that was not until 2002.

In the mid-1990s, before a hysterical American government decided it needed a police state for Americans in order to thwart foreign terrorism, attorney Lynne Stewart drew little attention when she, along with William Kunstler and Abdeen Jabara , represented Sheikh Omar Abdel Rahman ("the blind sheikh") at trial on terrorism charges. He was convicted in September 1995 and sentenced to a life term that he's still serving.

Stewart continued representing Sheik Omar over the years, as the government tightened restrictions on his communications with the outside world, and the lawyers were expected to enforce the restrictions at the risk of being removed from the case. Stewart admits she violated these guidelines - known as "special administrative measures" (SAMs) - whose constitutionality has never been tested. At a minimum, these measures allow the government to interfere, without review, with a person's lawyer-client privilege and free speech rights.

When They Change the Rules in Mid-Game, You'd Better Challenge or Obey

As Stewart described her offense on "Democracy Now," "In 2000, I visited the sheikh, and he asked me to make a press release. This press release had to do with the current status of an organization that at that point was basically defunct, the Gama'a al-Islamiyya. And I agreed to do that. In May of- maybe it was later than that. Sometime in 2000, I made the press release."

Despite her free admission of the violation, the Clinton administration's Justice Department, under Attorney General Janet Reno, did not seek to prosecute Stewart. They made her sign a new agreement, but they did not remove her from the case.

Almost two years later, in the aftermath of 9/11, the Bush administration, with Attorney General John Ashcroft as the point man, decided to make Stewart the center of a show trial. In April 2002, Ashcroft not only travelled to New York to make a big media event out the announcement of the indictment of Stewart and two others, but he then went on late night TV, the "Letterman Show," to further push Stewart's guilt, the Bush administration's hard line on terrorism, the contamination of the jury pool, and trial by media.

Ashcroft did not create a similar media event when the initial charges were dismissed in the summer of 2003. In November, with less fanfare, Stewart was re-indicted on obstruction of justice and conspiracy charges. In February 2005, after a nine-month trial, Stewart and her two co-defendants were convicted. The judge in that trial in federal court was John Koeltl (Georgetown, Harvard Law), a 1994 Clinton appointee to the bench of the Southern District of New York. On October 16, 2006, when Stewart was undergoing breast cancer treatment, he sentenced her to 28 months in prison, although she remained free on bail while her appeal was pending.

There Was Never Much Possibility of Stewart Not Going to Prison

Stewart had asked Judge Koeltl not to sentence her to prison, but the judge told her that her actions had incorporated "an irreducible core of extraordinarily severe criminal conduct on behalf of her client. As The New York Times reported at the time:

Judge Koeltl broadly rejected the prosecutors' portrayal of her as a serial liar and terrorist conspirator who would be a danger to society if she remained free. Instead, he focused on her past service as a lawyer. "She has represented the poor, the"disadvantaged and the unpopular,' Judge Koeltl said, adding that Ms. Stewart had demonstrated "enormous skill and dedication" in her legal work and earned little money from it....
The judge pointed out that Ms. Stewart would lose her license to practice law as a result of her conviction and sentence, which he said was a form of punishment, and that she is barred from having any contact with Mr. Abdel Rahman. He said the chance that her crimes would recur was "nil," and noted there had been no evidence that anyone was harmed as a result of her actions. He also mentioned that there was a "statistically significant" chance that Ms. Stewart's breast cancer would recur.

Judge Koeltl took a relatively wholistic view of Stewart's life, considering much more than the limited crimes before him. He pointed out that she was instrumental in 2002 in helping one of her clients, Matias Reyes, confess to raping a woman in the Central Park Jogger case, a confession that freed five wrongly-convicted young men.

"It is no exaggeration to say that Ms. Stewart performed a public service not only to her clients but to the nation," Judge Koeltl said at the sentencing.

For the U.S. Government, the Sentence Could Never Be Harsh Enough

The prosecution, which asked the judge to sentence Stewart, then 67, to a term of 30 years, also appealed. A three-judge panel of the Second Circuit Court of Appeals not only upheld the government's conviction but wrote a stern decision all but ordering Judge Koeltl to expand Stewart's sentence. On November 17, 2009, the appeals court also ordered Stewart into prison immediately, causing an 18-month delay of her cancer surgery scheduled that week.

Whatever kindness and compassion Judge Koeltl may have felt in 2006, he showed little in the face of the appeals court's anger. On July 15, 2010, Judge Koeltl more than quadrupled Stewart's sentence, from less than three years to more than ten. His lengthy sentencing report was largely technical and included, as justification for the longer sentence, comments Stewart had made outside of court after her trial.

In 2010, Judge Koeltl could have defied the appeals court and imposed a lower sentence based on the tradition of judicial independence, and deference to the trial judge who actually hears a case - but that would have taken tremendous political courage, even for a judge with a lifetime appointment. Now the case is before him for the third time, essentially unchanged since the beginning, although the country's and the government's witch-hunting hysteria has abated some.

Some People Want Stewart to Apologize for Resisting More State Power

Right after the resentencing, independent journalist Petra Bartosiewicz, who covered the trial, appeared on "Democracy Now." The author of "The Best Terrorists We Could Find," about terrorism trials in the U.S., Bartosiewicz commented:

What is really amazing about this case is that it has spanned now three presidents and five attorneys general. It has gone on for year after year after year. And at the heart of the charges against Lynne is that she violated special administrative measures [SAMs], and she spoke about that in the comments she made earlier....

But what is not really talked about a lot is that was a pre-9/11 offense that has occurred in a post-9/11 world, and it makes a huge difference in terms of the context in which this has all played out, because at the time that the SAMs were imposed in 1996, Rahman was one of the first individuals who had these SAMs applied to him. It was a very new legal tool. It was evolving. There were several versions of the SAMs that came out. It's interesting to note that Patrick Fitzgerald, the assistant U.S. attorney who was in charge of that process when Lynne initially violated the SAMs, his reaction was not to seek an indictment.

This case offers a stark paradigm in the development of an American police state. Kafka would be proud.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner
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