[lbo-talk] conclusion to Tigar's defense of Stewart

Doug Henwood dhenwood at panix.com
Tue Jan 11 12:23:46 PST 2005


[John Mage passed along this transcript, which appears here for the first time anywhere: it's the conclusion of Michael Tigar's summation in the trial of Lynne Stewart.]

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1 UNITED STATES DISTRICT COURT

1 SOUTHERN DISTRICT OF NEW YORK

2 -------------------------------------x

2 UNITED STATES OF AMERICA,

3

3 v. S1 02 Cr. 395 (JGK)

4

4 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"

5 a/k/a "Dr. Ahmed," LYNNE STEWART,

5 and MOHAMMED YOUSRY,

6

6 Defendants.

7 -------------------------------------x

7

8 January 10, 2005

8 9:33 a.m.

9

9

10

10 Before:

11 HON. JOHN G. KOELTL

11

12 District Judge

12

13

13 APPEARANCES

14

14 DAVID N. KELLEY

15 United States Attorney for the

15 Southern District of New York

16 ROBIN BAKER

16 CHRISTOPHER MORVILLO

17 ANTHONY BARKOW

17 ANDREW DEMBER

18 Assistant United States Attorneys

18

19 KENNETH A. PAUL

19 BARRY M. FALLICK

20 Attorneys for Defendant Sattar

20

21 MICHAEL TIGAR

21 JILL R. SHELLOW-LAVINE

22 Attorneys for Defendant Stewart

22

23 DAVID A. RUHNKE

23 DAVID STERN

24 Attorneys for Defendant Yousry

25

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1 (Trial resumed; jury not present)

2 THE COURT: Good morning, all. Let's bring in the

3 jury.

4 MR. TIGAR: Shall I move to the lecturn, your Honor?

5 Thank you. I will take this off here.

6 THE COURT: Mr. Fletcher advises that the jury is

7 going to be a couple of minutes. I would remind the jurors at

8 the beginning of my usual instructions about summations that

9 nothing the lawyers say is evidence. Basically the lawyers

10 submit that they submit the evidence shows or does not show and

11 that all issues of law, they are to follow my instructions on

12 the law.

13 If any lawyer says a principle of law different from

14 what I say it is my instructions that they must follow and they

15 are to continue to apply those instructions throughout all the

16 summations. And we are just waiting now.

17 MR. TIGAR: Your Honor, will you be saying that it is

18 the purpose of summations to argue to the jury what we claim

19 the evidence does or does not show?

20 THE COURT: Right.

21 MR. TIGAR: Will you be giving that part?

22 THE COURT: Yes.

23 MR. TIGAR: Thank you.

24 THE COURT: The lawyers submit what they submit the

25 evidence does or does not show.

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1 MR. TIGAR: Thank you very much.

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1 (Jury present)

2 THE COURT: Good morning, ladies and gentlemen.

3 THE JURY: Good morning, your Honor.

4 THE COURT: It is good to see you all.

5 Ladies and gentlemen, we are going to continue with

6 the summations. Please remember all of my continuing

7 instructions that you are to continue to apply throughout all

8 of the summations even if I don't, as I have told you, repeat

9 them after every break.

10 Remember that nothing the lawyers say is evidence.

11 The lawyers submit to you what they submit the evidence in the

12 case has shown or not shown.

13 On all issues of law, it is my instructions on the law

14 that you must follow. If any lawyer states a principle of law

15 different from what I say that the law is, of course it is my

16 instructions on the law that you must follow.

17 And remember that you are to continue to apply these

18 instructions throughout the summations and I will repeat them

19 again in the course of my final instructions to you.

20 All right, Mr. Tigar, you may proceed.

21 MR. TIGAR: Thank you, your Honor.

22 I will wind this up as expeditiously as I can in

23 talking about what the evidence does and does not show. The

24 "does not show" has to do, in our respectful submission, with

25 this idea of reasonable doubt.

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1 Now, on Thursday when we were last here I had

2 mentioned that really it is one percent of Lynne Stewart's life

3 that is on display here if you look at her caseload and the

4 other matters she was handling.

5 Now, the reason that she took the stand, and you know

6 she was on the witness stand there for you to see for all or

7 part of nine days, the reason was to put all of this into the

8 context of her life because the government didn't tap her

9 phone. She was picked up when she would call people whose

10 phones were tapped or when she wandered into other

11 surveillances.

12 I am not going to take your time by going through her

13 testimony and putting up pieces of transcript. As I said on

14 Thursday, that's at war with the way I learned how to do this.

15 If we were going to try the case based on reading transcript we

16 could have faxed it in and she wouldn't have to be on the

17 witness stand. She was there. You saw her, you observed her

18 demeanor, you watched her on cross-examination and you watched

19 something very important, I submit to you when you evaluate her

20 good faith, which we submit is a key concept.

21 Lynne Stewart achieved success in her profession in

22 the branch of her profession that she chose to work in, not

23 uptown, Wall Street, real estate. There is nothing wrong with

24 all of that branch of the profession, she chose to do her

25 profession in her community. And she chose it because her life

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1 experience, as she worked in the school up in Harlem and down

2 in the East Village, down in the projects, she saw every day

3 what was happening, particularly to young people in her

4 community, and decided she was going to do something about it.

5 She earned her place.

6 Now, you will recall that the government confronted

7 her with her radical politics and the principal thing they

8 confronted her with was a newspaper article that appeared in

9 1995 by a man named Joe Fried in the New York Times while she

10 was trying the Sheikh's case where she talked about her views

11 about violence.

12 Now, the Judge is going to instruct you about the

13 rights every American has to embrace dissident views, but isn't

14 it interesting that although those views were ones that she

15 publicly expressed in 1995, apparently whatever her views were

16 and she made no secret of them ever, the government is indeed

17 taxed with that, can you imagine Lynne Stewart making secretive

18 her views?

19 Pat Fitzgerald came here, the only government witness

20 who had a long experience working with Lynne Stewart, and he

21 told you, under oath, that he respected her as a person, that

22 he liked her, that she did a good job, that she was a well

23 respected lawyer back at the time that she was expressing those

24 views as well as trying the Sheikh's case.

25 Now, in talking about Lynne Stewart's approach to what

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1 she did, I submit to you that one of the most significant

2 things was her way of talking about what the media and the

3 government were trying to do to her client. She referred to

4 that as demonization. How do governments justify doing things

5 to people? They justify it by inviting whoever has decided to

6 regard that person as the other, not quite human, not us, the

7 other, different. And then they move from that to justifying

8 whatever else they're asking to you do.

9 Now, make no mistake, members of the jury, Sheikh

10 Abdel Rahman was convicted of very serious crimes. He was

11 being punished and we have seen no proper purpose in retrying

12 him here. But I also ask you to remember that the only

13 witnesses in this case, the live witnesses, the evidence which

14 is your exclusive province, yours to judge, nobody else's; the

15 only witnesses whoever testified they met and talked to Sheikh

16 Abdel Rahman after the SAMs were imposed in 1997 were Ramsey

17 Clark, Larry Schilling, Lynne Stewart, Mohammed Yousry,

18 Dr. Edwardy and the prison clerk Ms. Christiansen. They're the

19 only ones that met him, talked to him. And Mr. Fitzgerald,

20 even though he tried the case for nine months, didn't say he

21 had ever met him. Mr. Sattar never met him after the SAMs were

22 imposed.

23 So, the witnesses, with the exception of Dr. Edwardy

24 and the clerk, the real live people that actually met him and

25 talked to him were defense witnesses and they all told you

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1 about the effort to get him out of the United States so that he

2 would not be a lightning rod for protest.

3 Lynne Stewart Exhibit 1 is a heavily redacted

4 memorandum from the Bureau of Prisons in 1997 and it is a

5 pro-Bureau of Prisons document but it -- from Kathleen Hawk --

6 and it talks about having a meeting to talk, discuss how to

7 best counteract the threat posed should inmate Rahman's health

8 seriously deteriorate or should he die while incarcerated.

9 Of course if he is dead he is not going to be urging

10 people to do violence -- he would be dead. But the government

11 would still fear that others might take advantage of the

12 situation which is exactly what we've been saying.

13 These real live people acting in good faith said that,

14 first, they regarded the SAMs as something that they could work

15 within and that they did in good faith and also that they

16 thought that it was reasonable to try to get him to Egypt. Not

17 to exonerate him.

18 You know, one of the things the evidence in this case

19 abundantly shows is that the Egyptians are very good at

20 punishing people and if the Sheikh chose to go there, that

21 would be a constructive thing to do.

22 And as I reminded you early on, the fact that two

23 government lawyers disagree about what the SAMs said is a

24 powerful, powerful statement.

25 And I don't want to forget and I will even take the

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1 risk of boring you by reminding you again in 1731 where Abdel

2 Rahman says that he doesn't want -- that's that June 23, 2000

3 call -- he doesn't even want Mr. Taha to get back from

4 Afghanistan and be involved in the IG work.

5 Now why is that significant? This part I didn't say.

6 It is significant because the allegation is that Lynne Stewart

7 somehow conspired to provide Abdel Rahman to a conspiracy to

8 kill or kidnap and involve Mr. Taha. Well, if her client

9 didn't want to be provided to Mr. Taha or have Mr. Taha

10 provided, it becomes very difficult to see how the government's

11 case makes any sense.

12 And Lynne Stewart told you that she understood who

13 Mr. Taha was, that he was someone who opposed the cease-fire.

14 And as you look at 1731 you will also see that any --

15 Mr. Yousry is asking, he asks the Sheikh if he wants the Sheikh

16 to have Ms. Stewart call Mr. Taha. And the Sheikh says no.

17 Of course, there is no evidence that Lynne Stewart

18 would even know how to do it even if he wanted to have it done.

19 She didn't speak his language, no evidence she even knows where

20 he is, and indeed no evidence that that was ever translated for

21 Ms. Stewart.

22 Ms. Stewart also told you about the way lawyers do

23 their jobs. She said she never violated any undertaking or

24 promise she made. She said she was bound by the ethical rules

25 that governed lawyer behavior. She never violated any command

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1 or restriction.

2 Now maybe that's hard to see. Maybe the idea that

3 lawyers representing these people that are accused of terrorism

4 makes folks a little nervous so let's take it out of that

5 context if we can as you consider the evidence and let me

6 suggest this to you.

7 In our jobs everybody -- everybody's job -- we're

8 governed by rules and the rules tell us how to do our job so

9 that we can take pride in our work. Don't tell me how to do my

10 job. People say that all the time about their own job. It's a

11 common complaint. And lawyers do have a special set of rules

12 that reinforce their right to say this. Don't tell me how to

13 do my job. Lynne Stewart testified, these are rules, ethical

14 considerations and aspirational rules that are governed by

15 state law. That's the oath you take to be a lawyer, this

16 obligation to use independent judgment, and I thought maybe I

17 could give you an analogy.

18 Do you remember Dr. Edwardy? He's the bald fellow, he

19 is the homeopathic or osteopathic physician that was the

20 medical director, spent his career first as a physician

21 assistant and then as a doctor working in the prison. And I

22 must say that there are some questions that we put to him and

23 arguments that we made that disagree with how he did his job.

24 So, I cross-examined him about the failure to

25 communicate with his patient about religion, about the fact

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1 that his patient was isolated, isolated in a unique way about

2 how they have these special meetings with all these prison

3 officials, a chat with them, administrative people, and so on,

4 in the prison.

5 (Continued on next page)

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51AMSAT2 Summation - Mr. Tigar

1 MR. TIGAR: That the isolation might have enhanced the

2 other senses. But the doctor gives daily reports, we also

3 brought out. He didn't go into the cell every morning and say:

4 Good morning, you dirty, convicted terrorist, how can we deal

5 with you today? He said: Good morning, you're in fine fetter

6 this morning. He would know, well, the patient is rather surly

7 today. How can I help you? He approached you as a

8 professional.

9 Then right at the end of his testimony, perhaps maybe

10 hoping I would score a point, I pulled out a prison rule about

11 how the Sheikh was to be treated if he had a life-threatening

12 illness. Was there anything different, I ask, about the way

13 that your patient was to be handled in the event of a serious

14 or life-threatening medical emergency as compared to other

15 people under your care? Sir, yes, there was. One of those

16 differences is that he could not be transported from the

17 special housing unit without direct authorization from the

18 warden? Special housing unit is another word for the isolation

19 cell. Bureaucratic talk. That's correct, he says. And that

20 was so even if he had a serious or life-threatening medical

21 emergency, correct? That's correct. And then I asked this:

22 And this was a matter that was decided by the warden consistent

23 with her responsibility, correct? Yes.

24 "Q And that is to say it was not a decision made by the

25 medical staff or the administrative staff, correct?"

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1 And he shot back with an answer: That's correct. But

2 I do not believe that the warden would have ever overruled the

3 medical staff had we said that he was in danger of dying and

4 needed to be transferred.

5 Members of the jury, that is Dr. Edwardy's bubble.

6 That is Dr. Edwardy's supreme confidence that no matter what

7 that regulation said that he, a medical professional, would be

8 given the latitude to do his job by his rights. I submit to

9 you that is an analogy that bears some relationship to this

10 case.

11 Lynne Stewart got even more precise. First she talked

12 about the lawyer-client privilege. You remember the prosecutor

13 tried to cross-examine her with a Court of Appeals case. And

14 she made clear that the lawyer-client privilege, that's what

15 happens if a lawyer is talking directly to the client. That's

16 a privileged conversation. And that's narrower than the

17 lawyer-client relationship. How does the lawyer find out what

18 to talk to the client about? Well, by doing legal and factual

19 research, by going and finding facts. And she told you that

20 these principles about how doing that are matters of the

21 ethical considerations that are issued by the state bar where

22 she is a member.

23 And I asked her one at a time about those and read

24 them. They are not in evidence as exhibits, but I am going to

25 put up the text of them because they provide the framework for

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1 what she did.

2 History is replete of instances of distinguished

3 sacrificial services by lawyers who have represented unpopular

4 clients and causes. I'll skip down. A lawyer's representation

5 of a client, including representation by appointment, does not

6 constitute an endorsement of the client's political, economic,

7 social, or moral views or activities. That's an aspirational

8 standard of this profession. A lawyer is under no obligation

9 to act as advisor or advocate for every person who may wish to

10 become a client, but in furtherance of the objective of the bar

11 to make legal services fully available, a lawyer should not

12 lightly decline proffered employment. I submit to you that's

13 what Ramsey Clark said.

14 It is important that the world see that this case is

15 aggressively defended. The fulfillment of this objective

16 requires acceptance by a lawyer of a fair share of tendered

17 employment which may be unattractive both to the lawyer and the

18 bar generally. Given the consequences of Lynne Stewart doing

19 her job, coupled with the extremely modest fee that she

20 received, that consideration has a kind of an ironic aspect as

21 well as being relevant.

22 Then both the fiduciary relationship existing between

23 the lawyer and client and the proper function of the legal

24 system require the preservation by the lawyer of confidences

25 and secrets of one who has employed or sought to employ the

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1 lawyer. A client must feel free to discuss anything with his

2 or her lawyer and a lawyer must be equally free to obtain

3 information beyond that volunteered by the client. A lawyer

4 should be fully informed of all the facts of the matter being

5 handled in order for the client to obtain the full advantage of

6 our legal system. It is for the lawyer in the exercise of

7 independent professional judgment to separate the relevant and

8 important from the irrelevant and unimportant. The observance

9 of the ethical obligation of a lawyer to hold inviolate the

10 confidences and secrets of a client not only facilitates the

11 full development of facts essential to proper representation of

12 the client, but also encouraged nonlawyers to seek early legal

13 assistance.

14 Independent professional judgment, members of the

15 jury. And, of course, there will be many times when

16 prosecutors disagree. That's why it is called the adversary

17 system, not the do what the prosecutor wants system, not the

18 let the government make the final decision system. It is

19 called the adversary system and it is called independent

20 professional judgment.

21 A lawyer should exert best efforts to insure that

22 decisions of the client are made only after the client has been

23 informed of relevant considerations.

24 I won't read the whole thing. The testimony is there.

25 The duty of a lawyer, both to the client and to the

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1 legal system, is to represent the client zealously within the

2 bounds of the law, which includes disciplinary rules and

3 enforceable professional regulations, the professional

4 responsibility, to seek any lawful objective through legally

5 permissible means. And then: The bounds of the law in a given

6 case are often difficult to ascertain. I won't read it out.

7 It is there. Let me leave it on the board for a minute.

8 Those are the principles that Lynne Stewart was guided

9 by and that's what she testified to. She took the stand and

10 she testified about her understanding, not just of some

11 abstract general principles, but of these ideas that are

12 central to the functioning of the democratic society.

13 In this argument I began by talking about the

14 elements. I arraigned as best I could the prosecutor's

15 summation, what the evidence will show. They will get a

16 rebuttal summation. That's why I use my analogy, it wasn't my

17 obligation to build you a building. I was like the building

18 inspector that pointed out that there are reasonable doubts

19 whether this building they have tried to construct holds

20 together. I want to go back for a minute. The judge has told

21 you over and over again that he will instruct you on the law.

22 The judge has told you over and over again not to single out

23 any particular instruction. His instructions on the law will

24 cover several hours and you will have a copy of them in the

25 jury room.

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1 So maybe, maybe you will say, you know what, all this

2 lawyer talk, this lawyer rhetoric doesn't move me, defense

3 rhetoric, prosecution rhetoric. And I don't use the word

4 rhetoric as an insult. Rhetoric, which is the science of

5 argument. There are books on it. Go back 600 years B.C.

6 That's fine. It is an old honorable tradition. But maybe

7 that's not the way you choose to decide. Well, fine. You will

8 have the judge's instructions. Don't single out any one

9 instruction.

10 There are principles there, principles that are basic

11 to our system so that you could say, look, overall, I think

12 that Ms. Stewart was negligent, not guilty. I think she was

13 mistaken, but in good faith not guilty. I think she did the

14 conduct, but she didn't have the specific -- the intent that's

15 described in the judge's instructions not guilty. So many

16 roads to not guilty. And if you look at the matter that way,

17 which you may decide to do because it is your province to

18 figure out the case, you may see that this case is a great deal

19 less than the government has claimed, but also, members of the

20 jury, I am going to say this in a concluding bit in just a

21 little while. It involves a great deal more than they have

22 admitted.

23 You're going to have the indictment also. Members of

24 the jury, the judge will tell you that's just a charge. We

25 didn't draft it. It contains many, many allegations. The

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1 essential matters I submit to you are the elements of the

2 offenses. And if there is any one element of any offense there

3 is a reasonable doubt on that charge as to Lynne Stewart, it is

4 your duty to vote not guilty.

5 You might even at the end of the day say, well, I

6 wouldn't hire Lynne Stewart. Not guilty. The bar should look

7 at Lynne Stewart by some lesser standard than beyond a

8 reasonable doubt. Not guilty. Or good faith. And when the

9 prosecutor puts up exhibits and asks you to look at them, I ask

10 you to look back at the context of this case, remembering each

11 time who it was that brought the live witnesses who really knew

12 something and who was offered evidence that was subject to

13 cross-examination and how the context was of particular things.

14 Of course, if they want to do more about Lynne

15 Stewart's politics, although the prosecutor summed up first and

16 said no more needs to be said, I think more will be said.

17 That's fine. Those who wrote the bill of rights were not

18 cowards. We have a society based on the bill of rights,

19 members of the jury. There are risks. There are risks from

20 people expressing unpopular ideas, risks that those who might

21 be guilty will be freed because there is not lawful evidence

22 beyond a reasonable doubt, risks that wild religious doctrine

23 will get loose and have a bad influence. And we take those

24 risks because with the decades of our freedom piled so high,

25 they are what makes a society great.

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1 And members of the jury, I concede to you that I am

2 afraid. I'm afraid that the Islamic fundamentalists or some

3 other kinds of fundamentalists are going to win. Suppose we

4 got so worked up, so incited by the rhetoric of government that

5 we decided to punish people for their radical politics, because

6 their politics scared us or their religious doctrine appalled

7 us, or we decided to skip over reasonable doubt and do things

8 based on suspicion, decided to cast aside the presumption of

9 innocence and start accepting critically what government agents

10 tell us.

11 If all of that happened, members of the jury, the

12 fundamentalists would have won. They would have seen

13 extinguished the light of this last hope of earth, which is not

14 some particular country, but it is the very ideology of human

15 rights. Then the Islamic fundamentalists and all the

16 fundamentalists can have a big celebration. This is not the

17 time and place to make a cosmic decision about that.

18 But right now, you, once the judge instructs you on

19 the law, you are we, the people. Your power is as that of the

20 ancient kings. I'm not ashamed that knowing that to plead with

21 you to suggest that in shouldering the responsibilities and

22 accepting the risks of freedom, the next right thing to do is

23 very clear indeed.

24 Members of the jury, Lynne Stewart is in your hands.

25 She is not guilty. Thank you.



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