Saturday, February 24, 2007

Strange Bedfellows

Can’t sleep. Too pissed off about Lynne Stewart and Mumia Abu-Jamal. I hope they have to share a cell. Checked out my hometown newspaper online. Struck by this story about a private defense attorney in Windham County, VT who is and/or was the target of an obstruction-of-justice investigation. She admits to telling her client that if the witnesses against him didn’t show up, he would be acquitted. Police think she may have said more. The client sent a variety of communications to the victim “encouraging” her not to testify. An undercover cop called the lawyer, pretending to be a witness, to see if she would try and dissuade him from testifying. The call was recorded without her knowledge, but pursuant to a warrant. The client has pled to domestic assault, probation violations, and obstruction. The lawyer has not been charged.

Criminal defense lawyers all over the state are apparently up in arms. According to the article, they’re worried about a “chilling effect.” Here’s what I think: we should definitely try to “chill” efforts to intimidate witnesses. Criminal defendants deserve zealous representation, but defense attorneys have no special mandate to break the law just because it might help their clients. All of which brings me back to: Lynne Stewart. Did anyone go to her presentation? Did any protesters hand out highlighted copies of the transcript (p.29) where she giggles about the trouble she could get in if she got caught passing messages for her client? (Thanks to John Steele’s comment below for the link.)

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Blogger Tom Fletcher said...

Quick thoughts:

1. Sadly, I had to be in class and missed Ms. Stewart. I did however see the organizers cleaning up. One had a large box of ANSWER materials. I think that spoke volumes.

2. I am sensitive to the "chilling" obstruction argument. It appears inappropriate in the situation you describe, but obstruction of justice is such a flexible crime and so easily charged. My biggest gripe with it is that it so often is the fallback charge for a prosecutor whose lengthy investigation has produced no evidence of actual wrongdoing. However, the target didn't comply perfectly with the process, and therefore gets charged with obstruction. Among others, see Whitewater -> impeachment, Libby's trial.

2/24/2007 8:39 AM  
Blogger Max Power said...

Tom, why do the ANSWER materials speak volumes, and what is it that they say?

That's a sincere question--I'm really not sure what you're getting at.

2/24/2007 12:15 PM  
Anonymous Anonymous said...

With Lynne Stewart, at least reasonable people can disagree whether her acts met all the elements of the crimes charged (providing material support, defrauding the government), whether the Special Administrative Measures imposed were legal, or even if what she did was wrong (I think it was, but reasonable people could disagree).

With Mumia Abu-Jamal, you have to basically be insane to think he is innocent. His case was the kind of case that the phrase "mountain of evidence" was invented for. A litany of eye-witnesses, an overheard confession by 3 people (including one non-police officer), and ballistics showing that Mumia had a bullet in him from the cop's gun and the cop had a bullet in him from Mumia's gun.

The "evidence" brought up to support him include: a jail house (same jail that Mumia is in) hearsay statement of the relative of someone (now dead) who testified against him saying that the testimony was false,
the fact that he was a former black panther and thus it must be a racial conspiracy,
that some coroner (not a ballistics expert) thought the caliber of the bullet was slightly higher when he retrieved it from the body,
that more ballistics tests weren't done,
and that he was not allowed a "fair trial" in that he was not allowed to represent himself after disrupting the proceedings over a dozen times, he was not allowed to appoint a non-attorney to represent him, and he did not like his court appointed attorney.

People who believe Mumia Abu-Jamal simply have a need to believe in specific instances of racial conspiracy and glom-on to whatever one most people seem to talk about. This of course, undermines and ignores all the real such incidents that occur, but they don't seem to care.

2/24/2007 12:53 PM  
Anonymous Anonymous said...

Yeah, Lynne Stewart definitely isn't classy enough to defend corporate executives at Issac Zaur and Tom Fletcher's white shoe law firms. They would never defend people who are both despised and poor! Where does she get off thinking someone like her should be able to use the legal system to protect her clients? She probably didn't even go to a top law school or graduate Order of the Coif! Anyone who doesn't think she deserves thirty years in federal prison for violating an administrative regulation intended to disappear her client by preventing him from communicating with the outside world has no respect for our legal system. I mean, didn't you see the stuff the government recorded when they spied on her attorney-client coversations? Michael Ratner, the first speaker at the event, should realize there is no danger of our country becoming fascist so long as we have people like Issac Zaur, Tom Fletcher and Professor Jonathan Steele defending its integrity from their ivory tower and plush law firm offices against--to use Professor's Steele's term--lawyers who "cheat."

2/24/2007 1:05 PM  
Blogger Tom Fletcher said...

Re: ANSWER. From Wikipedia:

"Many of ANSWER's leaders were members of Workers World Party (WWP) at the time of ANSWER's founding, and are current members of the Party for Socialism and Liberation (PSL), a Marxist-Leninist organization that formed in 2004."

"There has been much discussion among U.S. leftist opponents of the Iraq and Afghanistan invasions of the degree to which they are or are not willing to work with ANSWER, as well as with Not In Our Name (NION) and, more recently, The World Can't Wait, which have somewhat similar histories, with the Revolutionary Communist Party (USA) having played a significant role in their foundings."

You can dig around on the internet for more, but basically it's the reincarnation of the Communist Party.

2/24/2007 1:36 PM  
Anonymous John Steele said...

A couple of points. First, I'm not "Professor Jonathan Steele." I'm not a professor. Hey, I'm not even Jonathan Steele. That would be this guy:

I'm John Steele. That would be this guy:

If you can't trust him, who can you trust?

Second, if you read my post you know that I criticized the request for a thirty year jail sentence as "appalling" and that I never criticized Stewart for coming from a non-elite background.

Third, if you read my post you know that I praised lawyers who represented the despised and poor, including lawyers fighting this administration's GWOT. I even offered an ethics opinion to a lawyer representing a Gitmo detainee. h(What, exactly, is the basis for your deeply held opinions about my political views? Do you know something about me that I don't know?)

Fourth, as for Stewart being a lawyer who cheated, I stand by that conclusion -- but I said that everyone should read the transcripts themselves and make up their own minds. If you'd like to go over them with me, we can meet at Cafe Zeb and exchange views about what the transcripts show. In fact, we can do a read-through.

2/24/2007 1:36 PM  
Blogger Isaac Zaur said...

As much as I appreciate Anonymous 1:05's conclusions about my views on 1) the legal system, 2) non-elite law schools, 3) poor people, and 4) who I would or would not "ever represent," I thought I would make an effort to clarify my own actual personal view about Lynne Stewart and her appearance at Boalt.

I read the transcript and it made me angry. This is because I think it shows a perverse pleasure in subverting the rule of law. I admire the lawyers (and others) who have devoted their energy and expertise to protecting the substantive and procedural rights of detainees. However, it’s frustrating to see someone who identifies herself with that effort turn around and basically mock her own obligation to obey the law.

This is also why I’m troubled by the visit to Boalt. My concern is that Stewart, a person whose notoriety comes from her disrespect for legal rules, seems to be trying to transform herself into a public representative of those who are working valiantly to protect rights that we all depend on.

2/24/2007 2:37 PM  
Anonymous Anonymous said...

Tom, are you saying the Boalt students who organized the event are either members of or working with the Communist Party?

2/24/2007 3:07 PM  
Blogger Tom Fletcher said...

Anon 3:07, no. All I said before was:

"I did however see the organizers cleaning up. One had a large box of ANSWER materials. I think that spoke volumes."

I do not believe the person I saw was a Boalt student. However, they were the last ones out and were cleaning up the leftover food. They were also cleaning up a large box of ANSWER materials. Draw your own conclusions, but from this snippet I inferred that there were people at the talk distributing those materials who also appeared to have been somewhat responsible for the talk because of their cleanup efforts.

Regardless, I'm quite sure that there are many people at Boalt with sympathies ranging from European socialism to full-blown Communism. Good for them. I still think their views are silly to frightening.

Putting that comment aside, this thread is about Lynne Stewart, not far-left protest groups.

2/24/2007 3:29 PM  
Anonymous Unclezeb's nephew said...

No reason to speculate about ANSWER's involvement, you could have just asked anyone from the NLG - ANSWER was not involved but Lynn is a personal friend of someone who is in ANSWER who wanted to make a 1 minute announcement. The NLG agreed, but made sure that ANSWER did not tell anyone that they were co-sponsors, because they were not.

Do you really want to make up a story about how ANSWER was involved? ANSWER also handed out materials when they invaded Yoo's class, but no one said they helped organize the class or that Yoo was a communist (though I think Martin has some suspicions). That is the problem with telling people to "draw their own conclusions" based on this tiny piece of BS associational evidence - drawing conclusions based on slanted review of second hand evidence can result in backwards conclusions that could easily have been resolved in less them that it took you to post the comment itself.

It takes less than one minute to stop you classmates from the NLG and ask them about it. They didn't even want to have ANSWER talk.

As for all those "people at Boalt with sympathies ranging from European socialism to full-blown Communism" - seriously? I think there are more Federalists, those handsome devils ... both of them. You think that there are more than maybe 6 people at Boalt who even understand or care about the difference between socialism and communism? ~68% of the students get jobs with corporate defense firms, 13% clerk and then get those same corporate defense jobs, less than 12% go into public interest work (including quite a few prosecutors who I'm guessing are not communist sympathizers, though Bone may surprise me =). Stop fooling yourself into this false idea of what Boalt and UC Berkeley represent, both are filled with a lot more Democrats than Republicans, but the "radicals" are far and few between on either side. I'm sure when "conservative" Boalt students get outside the Berkeley Bubble they're seen as raging liberals at times.

Sorry this may come across as a bit of a rant, but I know you guys and you're smarter than this BS. So you're supposed to be more conservative than the average Boalt student and you feel you're obligated to let everyone know when a "radical" lawyer comes to campus? But just because some other group that is a front for the RCP showed up to the National Lawyers Guild event doesn't mean they put it on or that you're beliefs about the wacky progressives at Berkeley are true.

Step back, love your fellow Boalties for trying to have a discourse with a prominent figure in the profession and understand that who helps clean up doesn't make the event any less meaningful.

As for Mumia, I don't think we were taught this particular persuasive writing style in LRW: "you have to basically be insane to think he is innocent." Donna Petrine would cry if she read that. Actually, she'd probably yell. We love Donna =)

2/25/2007 9:49 PM  
Anonymous Anonymous said...




I must say that this blog seems to be getting worse. I have noticed a sharp uptick in ad hominem attacks of late. This post is particularly bad. Calling your classmates sectarian communists is not cool. It may even border on cyber bullying.

On a related note, I am also quite troubled that a Boalt instructor (John Steele) chooses to associate himself with the recurring slimfests on this blog. It seems unfitting for someone who teaches at Boalt to be posting on a thread that started with a student calling his classmates names. It also is a bit odd that he saw fit on an earlier thread to make an off-topic post attacking a speaker before people even had a chance to hear her speak. My opinion of Steele is certainly dropping with every post he makes on this blog. I am glad the other professors at Boalt are professional enough not to join in the trainwreck that is this blog.

2/25/2007 10:59 PM  
Blogger Armen said...

Ad hominem...check.

Cyber bullying...check.

I'm even tempted to include general NLG douchebaggery for good measure, but I'll let that one slide. The only reason discourse on this blog is deteriorating is because of posts like the previous two. Yeah you two. Did you offer anything substantive in the posts? Did any of you address the merits of the OP? Did you have the courtesy to post with your names? Did you take up Prof. Steele's offer to discuss the issues with him in person? No, one insult after another. That's all you got? That's all the NLG can throw? I mean I've come to expect it ever since the morally justified and, you know, life saving stunt that interrupted my con-law class (thankfully it worked and all prisoners have been released or given their day in court).

But keep up the good work. Keep falsely accusing us of whatever the hell you want. In the end, it's just you digging your own grave with your own words. I just wish I hadn't given up popcorn for lent to enjoy the show.

2/25/2007 11:13 PM  
Anonymous Anonymous said...

I actually thought Unclezeb's Newphew made some cogent points that hadn't been raised. He pointed out some holes in prior thinking. The whole thread through him was quite good in my estimation--very thought-provoking.

The 10:59 point is also terrific--in a different way. It's a wonderful example of the anti-free speech tendencies of the radical left. Unable to actually defend ludicrous ideas, the radical left increasingly resorts to trying to shut down any views to the right of Noam Chomsky.

Notice what this speaker is doing. He twists a legitimate point about the political sensibilities of his comrades into an egregious "ad hominem attack." He cries out that attempting to label someone's viewpoints is "not cool." Worse, he wants to censor a Boalt instructor for sharing his thoughts in an "unapproved" forum. He hopes "other professors" don't stoop to...speaking their minds. Boalt, if not society itself, would be so much better if we just shut this damn site down.

This has obvious analogues. Whether to the speech code movement of the early 90s, the hyper-sensitivity to issues of race and gender, the eagerness to label Republicans "fascists" (thereby denying the need to even engage with their points), the attempts to throw John Yoo off campus, etc. The extremists think society must be sheltered from viewpoints not their own.

In contrast, no one tried to shut down Lynne Stewart's sermon. In fact, the original post asked if anyone attended the talk and could share anecdotes. Another poster supplied details on Mumia's crimes. Another helped explain what ANSWER stands for. Those of us to the "right" of Lynne Stewart and Michael Ratner (e.g., normal run-of-the-mill leftists) think there's nothing wrong with aggressive, give-and-take debate...b/c when there is, sensible (liberal!) ideas normally win. Those of you further to the extreme are a disgrace to the liberal ideas you espouse. But keep talking! It only makes the rest of us seem so sensible in comparison.

2/26/2007 1:01 AM  
Anonymous Anonymous said...

It seems 1:01 is the one twisting the issues.

The problem with this thread started with people suggesting the Boalt students who put together Friday's event were communists, which certainly sounds like an ad hominem attack. To recap, first they suggested the student org that sponsored the event was working with ANSWER. Then they said ANSWER is "basically the Communist Party." As the earlier post points out, evidently the student org didn't want to have anything to do with ANSWER or the other such groups mentioned above.

The principle issue people are objecting to here is the name-calling. Baselessly calling your classmates communists is out of line. No one is trying to "shut down" debate about the issues raised by Lynne Stewart's case--the event itself was organized to galvanize debate. No one is asking to shut down this blog. When students call their classmates names, names that have a long history of being used to "shut down" debate (or worse) in this country, however, respect for free speech does not require silence from those who object to such name-calling.

2/26/2007 1:20 AM  
Anonymous Anonymous said...

John Steele should feel free to participate in whichever blogs he chooses, including this one. It seems he tries to stay away from the more silly posts, such as ones about MILFs. But there is always a danger a discussion will descend as this one has. He's a big boy and can decide if he's ok with having his name included with a bunch of law students flaming each other. And speaking of flaming, the premise that this blog could be a site of robust debate between students with divergent views is flawed. Since when have such people been able to have a civil and productive debate on a blog? Check out the article on flaming from last week's NY Times, available at (sorry Armen, I don't know how to insert the link).

2/26/2007 10:26 AM  
Blogger Armen said...

10:26, see here. I'll add this link to the sidebar at some point.

I've reposted the NYT link here

2/26/2007 10:34 AM  
Anonymous Anonymous said...

I think this debate has been civil enough -- a reasonable diversity of viewpoints. There isn't more of a "debate" about Lynne Stewart b/c there isn't much to debate. She's a con artist, a bad lawyer, a cult figure, and a disgrace to the bar. We don't need to "debate" extremist leftist views on this blog any more than we need to debate whether homosexuality is a "sin," extraterrestials landed at Roswell, or the US would be better if we abolished private property--anyone espousing those views--while welcome to do so--is beyond the (very generous) political sensibilities of this blog, which I guesstimate to range from far-left to center-right. It's not too hard to find plenty to debate within that range. Ideas more extreme than that merit no meritocratic response. Just because you're a nut with a computer doesn't mean everyone else has to engage you.

Thus, it's more interesting to talk about censorship, sponsorship, etc. Which is what this thread has been about. So what's the problem here?

2/26/2007 10:54 AM  
Anonymous Unclezeb's Nephew said...

"I'm even tempted to include general NLG douchebaggery for good measure, but I'll let that one slide. The only reason discourse on this blog is deteriorating is because of posts like the previous two. Yeah you two."

Oh Armen, I thought you were mad at me for a moment there =)

Well, I'm in the NLG and though the posters you mentioned may have been members, but they didn't say they were and we don't really know if they are. Honestly, most people think the NLG is far out and are willing to point out what they think the Guild believes even if they're not members; but it's not too different from ACS in terms of what it actually does and stands for ... it's just older and has a richer history of involvement with progressive causes, but we're very into other progressive groups like ACS. Hey, I'm in both!

Some people may support what is said by the NLG who are not members and who are abrasive. That doesn't mean there's any "NLG douchebaggery" ... come on, you like the NLG deep down and you support our efforts to make the voice of Boalt progressives organized and coherent rather than lonely screams working separately. It's a good mission, good for everyone. And our bake sales are the best! Not because there's anything special in the brownies, hippies are just better cooks =)

Just to say something about a few of the responses calling Lynn names and whatnot: she's a pretty well respected attorney, many state bar association presidents and prominent conservative attorneys have made statements supporting her quality representation and asking for leniency in her sentencing. Being more angry about the inaccurate comments might get more people to react or read, but I'll settle for subdued here, seems that the site needs some more of that.

Let's all be friends again, [[hugs Armen]]

2/26/2007 12:29 PM  
Anonymous Anonymous said...

An observation: ACS and NLG don't have blogs where they attack the Federalist Society and call them fascists. In light of this it seems especially inappropriate for the Federalist Society to have a blog where its officers call NLG members communists (and douchebags).

2/26/2007 1:49 PM  
Anonymous Anonymous said...

Could someone please post a link to the earlier Steele post that is referenced above?

2/26/2007 2:12 PM  
Anonymous Anonymous said...

I think a blog comment post is beyond the jurisdiction of LRW.

Unclezeb's Nephew:
It's always easy to claim that there aren't enough people are of political orientation X if you define X as "not being any much more to the [left/right] of me." If you went to other law schools, you'd proably realize Berkeley is still one of the most progressive, regardless of the realities of paying off up to $100k+ in debt.

Since when did this become a Federalist Society blog?

And, can you really say the NLG is not communist when it has lines like this on its website:

"But the collapse of the Soviet Union, and the increased concentration and coordination of world capitalism, have also made clear that we must taken a proactive role in dealing with these issues."

Also, don't you think it's a little douchebaggy to defend Marxist-Leninists for Smith Act violations, but not Trotskyists? Are they just too right for you, like this blog?

2/26/2007 3:14 PM  
Anonymous Anonymous said...

I'm not 1:49, but the claim that the NLG is a "communist" organization is absurd. There are certainly NLG members who identify as "communist" and the organization as a whole is left-oriented. But, the NLG is not in any material sense revolutionary in it's activities or ideological positions or at all an advocate of Soviet style communism. The stray comment quoted above regarding the collapse of the Soviety Union is better understood if read with the sentences preceeding it:

"The NLG International Committee
International Committee Website:
Since its inception, international work has been a critical focus of the National Lawyers Guild and its members. Historically, that work has often been centered on the support of national liberation movements (such as Vietnam and South Africa). Ongoing projects have resulted, such as the South Africa Sub-Committee’s Truth & Reconciliation Commission Monitoring Project. Guild delegations and members have represented the organization in Colombia, Japan, Cuba and, most recently, Israel and the Occupied Territories. The Cuba Sub-Committee has been actively involved in anti-blockade work, and most recently in the struggle to return Elian to his homeland.

But the collapse of the Soviet Union, and the increased concentration and coordination of world capitalism, have also made clear that we must taken a proactive role in dealing with these issues."

This is not an expression of longing for the good old days of the soviet, it's an observation that the causes identified in the first paragraph no longer enjoy the support of a major global political power and that those same causes are threatened by the current conditions of global capitalism. Points that underscore the role of the guild in pursuing those activities.

And as far as the Marxist/Trotskyite divide is concerned, that is an artifact of now ancient ideological debates within the guild. It hardly makes current guild members "douchebags" or the NLG "douchebaggy" unless you're also willing to say that current ABA members and the ABA itself are "douchebags" because of the ABA's historical practices of excluding everyone who was not white and male.

2/26/2007 3:37 PM  
Anonymous Anonymous said...

Anon 2:12,

Here are the links to the Steele posts.

2/26/2007 4:48 PM  
Anonymous Anonymous said...

When you make "an observation that [certain causes] no longer enjoy the support of [the Soviet Union] and that those same causes are threatened by the current conditions of global capitalism," and you characterize the first Indochina War and Vietnam War as simply a "national liberation movement," and your "Cuba Sub-Committee has been actively involved in anti-blockade work, and most recently in the struggle to return Elian to his homeland," you might be a Communist.

On the douchebaggery front, I'm willing to stipulate to call both the NLG and the ABA "historical douchebags" as a compromise.

2/26/2007 5:47 PM  
Anonymous Anonymous said...

This exchange is an interesting contrast with one from last semester where a student referred to certain students on the right as "fascist." This post was quickly attacked because the student "dropped the f-bomb." Someone then posted a story about how you can't use the term fascist to refer to rightwingers who may look like fascists. This thread demonstrates that on the other hand you can call people on the left communists without immediately being discredited.

Does anyone have the link to the earlier post and the article? It would be interesting to read this exchange and the other one together.

2/26/2007 6:40 PM  
Anonymous Anonymous said...


I had a look at the transcript and I wonder if you are seriously basing your accusation that Lynne Stewart "giggles" at the prospect of getting in trouble for illegally passing information or is taking "perverse pleasure in subverting the rule of law" on the notation [Laughs] and [Laughing] found on page 29 of the transcript. Doesn't it occur to you that this could very well be nervous laughter induced by the high risk activity she was involved in? Especially given that the transcript clearly indicates that some sort of official persons are peering in at their conversations as they have them? Have you seen the actual video or have some other way to establish the context of your supposed "giggles"?

2/26/2007 9:10 PM  
Anonymous Garrett said...

A few brief comments:

1) Redbaiting is not a very intelligent or ethical way to attack an event with which you disagree. I think that opponents of the Stewart/Ratner event would be much better off focusing on why you think that Stewart's conduct was wrong, unethical or illegal, which provides a legitimate basis for constructive debate on these issues.

On that point, Stewart violated a Special Administrative Measure (SAM) that severely limits zealous advocacy by attorneys on behalf of their clients. I don't think she disputes violating this measure, but does fiercely contest the legitimacy of these SAMs. I think that there is a strong argument to be made that a lawyer in her position faces an ethical dilemma and must make a choice between providing zealous advocacy and representation for her client and following an administrative reg that she or he feels compromises this duty.

More info on Lynne's case:

3) I was not on the scene when the Officer Faulkner was shot (I was 3 years old then) so I can't say absolutely that Mumia did not shoot Faulkner. However, I am absolutely confident that Mumia's original trial was an atrocity:

*several of the witnesses for the prosecution have since recanting their "eyewitness" testimony, acknowledging that they were coerced by the police into lying that they saw Mumia shoot Faulkner. These witness had criminal records and were threatened with harsh sentences for prostitution and drugs if they did not lie on the stand.

*Judge Sabo (who sentenced more Black men to death then any other judge in the U.S.) said after the initial hearing (and within earshot of several witnesses, including the court stenographer) that he ewas going to help the cops "Fry that nigger"

*12 out of 14 potential Black jurors were struck during voir dire by the prosecutor raising serious Batson issues

* Much of the information that Mumia's defense counsel now has was either not available or deliberately withheld during the first trial, including evidence on ballistics, new statements by previously unknown witnesses, and evidence of police tampering and destruction of evidence.

* The Philadelphia police had a very strong motive to frame up Mumia - Mumia was the most outspoken critic of the notoriously brutal and racist Philly police force, which at the time was under federal investigation as one of the most corrupt police forces in the country. That and the fact that he was a proud Black Panther and MOVE member meant that he was at the top of the cops least favorite persons lists.

I think that its pretty reasonable to conclude that Mumia was denied a fair trial and certainly deserves to have a new trial where he will be able to mount a real defense and provide the new exculpatory evidence. I don't think its "insane" to believe that a reasonable doubt exists as to whether Mumia killed Officer Faulkner.

More info on Mumia' case and the evidence:

2/28/2007 12:30 PM  
Blogger Isaac Zaur said...

I don't have time for a long post, and I doubt many people are still reading this thread. However, I wanted to thank Garrett for posting helpfully and non-anonymously. I disagree with some of your conclusions about Abu-Jamal, but certainly some of the facts you point to, if true, are pretty ugly. Much of the conduct of the Philly cops under Frank Rizzo in the 80s was, in fact, pretty indefensible. So was a lot of the conduct of MOVE, but that's a whole other story.

I literally do not understand most of the (compound) question in the comment immediately preceeding Garrett's. However, to clear up any possible factual uncertainty, I did not view any video of Stewart passing messages for her client. I am not aware that any such video exists.

Lastly, I realize most of the commentary on this thread has focussed on Stewart and Abu-Jamal. I'm seriously very interested in the Vermont angle, though. And to prove that witness intimidation is a non-trivial problem in the US justice system, see this article in the NYT. In that context, what is an honorable defense attorney to do when her or his client asks about the likely consequences of a witness's unavailability?

2/28/2007 8:18 PM  
Anonymous John Steele said...


Thanks for posting. I didn't follow the Mumia case as closely as the Stewart case, so I don't have much to say on that one. I recall thinking both that the evidence of his guilt was very powerful and, notwithstanding that, the judge completely lost control over the trial, over his temper, and over his own better judgment. But, as I say, that's only a thin impression.

As for the Lynne Stewart case, I have to disagree with your characterization, if I understand it correctly. You say, "I don't think she disputes violating this measure, but does fiercely contest the legitimacy of these SAMs."

Neither she nor her lawyer (distinguished Boalt alum Michael Tigar) argued that the illegitimacy of the SAMs discharged her duty of complying with them. The criminal law precluded that defense. If that was her real motivation (and it may have been) then she had no legal defense. Nor did they argue that the ethics rules trumped the criminal law. There is no such ethics rule. Instead, Tigar's defense theory was subtle and creative, which is what you'd expect from one of the nation's best trial lawyers.

Tigar developed the concept of a "bubble" to create doubt as to whether Stewart had acted with the requisite criminal intent. Because there is no ethics rule or case law dealing with a "bubble defense," you have to read Stewart's direct testimony and the closing summations. (It helps if you do a literal word search for all occurrences of "bubble.") Tellingly, Tigar proffered no ethics expert for the bubble theory. I think that's because the defense was built around the concept of mistake rather than ethical justification.

Tigar argued that because lawyers are required to zealously serve their clients, when Stewart was faced with SAMs that might have impinged on her lawyering, Stewart interpreted the SAM narrowly, in good faith -- but, alas, mistakenly -- so as to create a "bubble" in which she could carry out her lawyerly duties.

It was a terrific rhetorical strategy in a case where there wasn't much to work with. When you read the SAMs and consider what Stewart knowingly facilitated, it's inescapable that she violated their literal terms. Hence one of the very last comments Tigar made to the jury in his closing was that "I think she was mistaken but in good faith not guilty." So, the defense was, in essence, "yes the SAMs are binding; yes she violated them; but she mistakenly violated them without criminal intent."

The government hammered on inconsistencies between the bubble theory and the facts. In my view (and apparently in the jury's view as well), you just can't reconcile the bubble theory with the tape recordings (which show such clear consciousness of guilt and wrongdoing), or with the earlier interview she gave to Greta Van Sustern (where Stewart frankly explained that her client was too important to be constrained by SAMs), or with common sense, or with the literal terms of the SAMs, or with how other aggressive criminal lawyers viewed the very same SAMs. You can see how activist lawyer Ramsey Clark, who also repped that client, wouldn't touch the letter smuggling with a ten foot pole. You can also reach outside the record to post-trial comments by far-left-cause-lawyer and Stewart sympathizer Ron Kuby who said that Stewart failed to recognize legal boundaries that other lawyers respected. (Listening to Kuby, one gets a strong sense that Stewart, who lacked a sense of professional boundaries, was left holding the bag.)

But let's consider this bubble notion more closely. How is it ethically acting *as a lawyer* to sit in prison working on a legal brief on another matter simply so that your Arabic-speaking paralegal can take down a legally forbidden letter urging people in the Middle East to withdraw from a cease fire in Egypt? That's not lawyering under the ethics code. The dictation of the letter was in Arabic, which Stewart doesn't even speak. Her only participation was to occasionally pretend that she was involved when guards looked over -- replete with laughter about their ruse and with expressly inculpatory statements about what would happened if their conduct was discovered. When guards peered in, she tapped her pencil on the brief from the other case and pretended to be talking about it. When the guard moved away, the client-paralegal dictation in Arabic recommenced and Stewart went back to her solitary legal work. No one asked her for legal advice about the illegal letter. She gave no legal advice about it (except for the implied advice that they were all in big trouble if their conduct became known). That's not legal work inside an ethical bubble. That's smuggling a forbidden letter out of jail.

Second, there is no free floating ethical duty of zeal that can be played like a trump card against criminal statutes. To the contrary, the relevant duty of zeal authorized only "reasonably available means permitted by law." "Permitted by law" is the key phrase. She couldn't show that. Even still, other ethics rules forbade Stewart from assisting the client to engage in his illegal conduct (e.g., sending the illegal "quit the cease fire" message), required Stewart to terminate her representation of the client once illegality was implicated (which her taped comments acknowledge), and forbade her from engaging in conduct involving "dishonesty, fraud, deceit, or misrepresentation" (again, her behavior on the tapes is fatal). Certainly there is no "zeal defense" for pretending to be engaged in lawyering so that your client can smuggle a letter out of jail. Indeed, that's why Tigar's defense was so narrowly crafted on that point.

Finally, if you read the transcripts there's no need to invent theories or multiply nuances. She knew that getting the letter out was against the law. She said so. She joked about it. She took steps to hide it. She nonetheless connived to make it happen. Initially she embraced the fact in public. So, why not take her at her own words? Why not credit her (illegal) commitment for what it was? Give her her due, such as it is. She is a lawyer who cheated because of her political commitments.

2/28/2007 9:12 PM  
Anonymous Anonymous said...

All I can say is that apology from Tom would seem to be in order. I'm disappointed - you seem to be so much more intelligent in person than you are online.

3/01/2007 1:02 PM  
Anonymous Anonymous said...

I know my rights man. I want a fucking lawyer, man. I want Bill Kunstler man...or umm, or Ronald Kuby.

Mr. Gonzales tells us that he had to eject you from his garden party, that you were drunk and abusive, and passing messages to terrorists.

Mr. Gonzales treats objects like, like women, man.

3/01/2007 3:40 PM  
Anonymous Anonymous said...

Kuby is a great choice.

Kunstler is . . . how do I put this? He's not trying cases. He's not made a general appearance in some time. He has forever "passed the witness." He's rested his case. He's been nonsuited. He's been moved into evidence. His memory has been refreshed for the last time. He's an unavailable witness within the meaning of 804. His judgment has been entered and his time to appeal has passed. He's joined the jury invisible. He's an ex-lawyer.

3/01/2007 4:45 PM  
Anonymous Anonymous said...

Professor Steele,

I have a few questions.

When you talk about "cheating," an issue you seem to be avoiding or at least downplaying is how the transcripts came to be in the first place. Didn't the government eavesdrop on Ms. Stewart and her client? Isn't this pretty outrageous, perhaps even more outrageous than Ms. Stewart's "cheating?"

As the ethics and conflicts director of a major law firm, can you say that no one at your firm has ever "cheated?" We'll have to take your word for it because the government is not filing in court or otherwise making available transcripts of attorney-client conversations in the offices of firms like Fish & Richardson. Leaving aside the cases of Ms. Stewart and Fish & Richardson, wouldn't you say "cheating" of one sort or another is rampant in the legal profession on both sides?

Regarding Mumia Abu-Jamal, you suggest the judge "lost control" at the trial. Is it not possible a judge intent on helping to "fry that nigger" actually was very much in control of a trial that eventually ended in a death sentence for one of Philly's leading radical journalists and critics of law enforcement?

Doesn't it seem a bit unfair for you to put the 1500-word smackdown on Garrett? Garrett made some good points and then you came in and tried to rip him to shreds. It reminds me of the fourth grader picking on the first grader on the playground. I'm not saying Garrett isn't capable of standing up for himself. It's just that he doesn't get paid to teach ethics so he doesn't really have the time to comb through trial transcripts or ponder the "bubble" defense.

Since you are becoming a regular poster on this blog, do you object to the red-baiting?

3/01/2007 4:48 PM  
Anonymous John Steele said...

Anon 4:48:

I've done some name calling here (Stewart is a cheater), but I hope I've put my name on my claim, put my credibility on the line, and justified my view. Cheaper forms of name calling and gratuitous name calling I don't like so much. For what it's worth, I have no problem with Communist lawyers who play by the rules. I've worked with, and done pro bono work for, womens rights advocates, legal services groups, disability rights groups, domestic violence victims advocates, plaintiffs employment class action firms, and others. Left leaning cause lawyers are some of the best and most interesting lawyers I know of. (Tigar, for example.)

The last thing in the world I intended to do was put a "smackdown" on anyone, let alone Garrett. He made a good point, and I was responding to it. It seemed like a productive give and take. I didn't mean to sound harsh and I sure hope I didn't. I really like talking about legal ethics, which I admit may be weird. I also really liked poring over Tigar's trial advocacy, which I found brilliant. But I thought it was a helpful dialgoue here.

As for the Mumia trial, I don't believe in an "unfair trial but obviously guilty" standard so notwithstanding the strong evidence I believe that we'd need a fair trial before you punish, which we haven't had yet. But, as I said, my impression is based on some quick reads about the trial.

As for the government eavesdropping, I've repeatedly argued against that practice. (There is a complicated discussion behind the theory of eavesdropping, which I can't recount here.) Unfortunately, Stewart's conduct can now be used as a reason to continue that practice. For what it's worth, I think Bush is a disaster, that Ashcroft was dangerous, narrow minded, without judgment or breadth of life experience, and was an awful Attorney General. But none of that justifies or excuses Stewart's conduct. I believe that "those bad people need to be fought so I am justified in cutting corners" is a classic rationalization for ethical mistakes, both for the Aschcrofts and the Stewarts of the world.

I work with very ethical lawyers. Since I started working at law firms back in 1974 I have seen some things and heard about some things. I hope I'd never justify cheating. Even if I did, Stewart's conduct would still be wrong.

3/01/2007 6:20 PM  
Blogger Isaac Zaur said...

I would hate for anyone to think his anonymity was wearing thin, but I did happen to run into a bunch of cheerful leftists in the hallway outside former room 115 just a couple of hours before “Anonymous 4:48” posted his comment. They were tossing around some pretty familiar phrases, “1500-word smackdown” among them. These were guys I know slightly, people I talk to in bars, people I’ve gone to school with for a few years now. Maybe none of them would ever post anonymously on N&B or mount a personal attack in that forum. If people in general had the courage to post under their own names, the way John, Garrett, Armen and Tom have, then I wouldn’t have to wonder.

3/01/2007 7:27 PM  
Anonymous Anonymous said...

Professor Steele,

4:48 here. I over-reacted and I apologize. As a person who only reads this blog in spurts, it is upsetting to see some of the stuff that piles up here from time to time. All of this attacking and nastiness does not sit well with me and I should not have posted while angry. Perhaps then I would not have perceived your addition as more "piling on." By the way, the name-calling that concerns me here is not "cheater," it is using the term "douchebag" to refer a group of hard-working students. Or referring to classmates as "communists," which is still a perjorative term (or worse) for many people in America, and that I believe should not be used without ample justification or self-identification. Even then people who aren't just out to attack should think twice.

Also, I have nothing against F&R nor any reason to suspect them of cheating so I shouldn't have mentioned them by name as an example of a big firm at the top of the profession. The point I was trying to make is that it is unfortunately an open secret in our profession that lawyers cheat all the time (I even had a practioner-professor once who basically told us you have to do it to be a good attorney). Beating up on one attorney who did it for a client who happens to be unpopular -- and who was a government target because she had this client -- without mentioning that some lawyers with more "respectable" clients frequently do it seems unfair. Your response about "some things" seems to acknowledge this asymmetry, which I appreciate.

I would only add that I am unconvinced that Stewart's circumvention of the SAMs is a worse ethical breach than the big-firm lawyer defending a big company in a big lawsuit who steps over the line -- or cheats -- by coaching a company salesman on how he should testify at trial to protect the company. Do you disagree?

3/01/2007 10:27 PM  
Anonymous John Steele said...


There was no need to apologize to me but I do appreciate your comments. Again, on my behalf, I wasn't trying to shout down or smack down anyone either, least of all Garrett. I actually could have written longer about the Stewart trial, just because I find this ethics stuff fascinating. Seriously. Maybe I need more hobbies. I'm coaching the Boalt trial team this weekend and for reading I brought along "The Origins of the English Legal Profession." How sad is that?

I don't like the name calling that you referenced. I thought the best thing was just to ignore it and stick to the substantive issues. I'd be sad to think that my posting here is interpreted as approval of epithets. The original impetus for posting here was simply the fact that several students last semester asked me about Stewart and a few asked me about her as her visit approached.

I agree that biglaw lawyers who, for example, suborn perjury are to be completely condemned. But I'd say that about lawyers from any type of setting. And I'd fight the suggestion -- if the suggestion is actually being made -- that we should adjust our condemnation of cheating lawyers by pointing out that there are other bad lawyers doing the same or worse. To me, that's such a dangerous rationalization, and all of us can fall victim to our own rationalizations.

Finally, I completely disagree with the comment that you were apparently told -- that you have to cheat to be a good lawyer. No way. There are lots of immensely successful lawyers who don't cheat. The idea that "everyone needs to cheat" is another one of those very dangerous ideas that can lead us astray.

3/01/2007 11:16 PM  

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