Criminal Justice :

5-26-12 march

WESPAC Foundation is concerned about the criminal justice system. We work in solidarity with other groups and organizations in Westchester County to repeal the Rockefeller Drug Laws, to eliminate racial profiling, and to address the structural and institutional biases inherent in our criminal justice system. We stand to permanently remove the death penalty as a legal option for the state, and we seek to significantly reduce the prison populations by working towards a more benevolent economic system that guarantees meaningful jobs and training at a living wage to all people.

The Gutted Writ:
On Habeas Corpus

Robert Perkinson
The Nation
January 10, 17, 2011

 

On a lazy afternoon in February 1961, Wilbert Rideau decided to rob a bank
in Lake Charles, Louisiana. Rideau, a smart but impulsive eighth-grade
dropout from a violent home, had counted on making a quick, clean getaway,
just like the ones he'd seen in the movies, but his plans unraveled during
the heist when a phone call to the bank revealed that the police were closing
in. Rideau took three hostages, commandeered a car and, as darkness fell,
got lost on the back roads outside town. At a bayou crossing the passengers
bolted, and Rideau opened fire. Two survived and vanished into the night,
but the third, a teller named Julia Ferguson, was wounded by the gunfire
and then stabbed to death by Rideau with a hunting knife. A 19-year-old
black man had killed a white woman. In no time, Rideau was under arrest.
_____________________________________________________________________
Books reviewed

In the Place of Justice: A Story of Punishment and Deliverance
By Wilbert Rideau
Knopf, 384 pp, 2010

Habeas Corpus: From England to Empire
By Paul D. Halliday
Belknap Press of Harvard University, 512pp, 2010
_____________________________________________________________________

Outside the jail, a mob formed. "Hang that nigger," a voice called out. But
the officers held their man, confident that justice would be swift and
severe. "It was a good little town back then," a deputy sheriff later
explained to a reporter. "Ever'body did their job. The prosecutors, the law
enforcement…. You didn't have to worry about lynching because they
lynched 'em for you."

The trial, as Rideau recalls in his gripping memoir In the Place of Justice,
was "merely a formality," played out by white attorneys before a white
judge and an all-white jury. "I was the only black in sight, a fly in a bowl of
milk," he writes. The place was Calcasieu Parish, at the height of the
backlash against the civil rights movement, when Louisiana lawmakers had
voted to close down the state's public schools rather than integrate them.
Rideau was guilty of terrible crimes–armed robbery, kidnapping and
homicide–but the district attorney stretched and suppressed evidence to
prove premeditation, a necessary condition for a capital conviction. Julia
Ferguson's stabbing wounds became an attempted beheading, an
embellishment later undermined by pathology photographs. A meandering
oral confession got replaced by a tidier version, written by an FBI agent,
that detailed plans to murder every witness. Physical evidence from the
crime scene disappeared. The verdict was certain: death.

When it reviewed the roughshod proceedings on appeal, the US Supreme
Court assailed Calcasieu Parish's "kangaroo court" and reversed the
conviction. But a second trial before another all-white jury in the same venue
returned the same verdict. At that point the defendant would have run out
of options were it not for an ancient legal instrument that dates back at least
to the sixteenth century, and indirectly to the Magna Carta: habeas corpus.
Literally an order to "have the body" of a detainee brought into court to
assess the legality of his or her confinement, the writ of habeas corpus has
long been celebrated in Anglo-American jurisprudence as "a fundamental
safeguard against unlawful custody" and "a critical check on the executive."
As the writ gained strength in the decades around England's Glorious
Revolution, it helped to vanquish absolutism and lay the groundwork for the
modern era's protections of individual rights. Architects of the early
American Republic regarded habeas corpus as so indispensable that they
enshrined it in the Constitution, before the Bill of Rights, and set an
exceedingly high bar to its suspension, only "when in cases of rebellion or
invasion the public safety may require it." Hailed by William Blackstone as
a "stable bulwark of our liberties," the writ has figured prominently, if
inconsistently, in protecting disfavored minorities and mitigating
repression throughout the common-law world. In the legendary Somersett
case of 1772, a habeas petition led to the abolition of slavery in England,
though not yet its colonies. In 2004 the Supreme Court ruled in Hamdi v.
Rumsfeld
that the Bush administration's indefinite detention of suspected
terrorists who are US citizens without judicial review was constitutionally
indefensible. Even during the "most challenging and uncertain moments,"
the majority held, "the Great Writ of habeas corpus" remains in force,
allowing citizens, aliens and even designated enemy combatants to challenge
involuntary confinement and demand "due process of law."

In Rideau's case, habeas corpus provided a second entry into federal court,
which ordered yet another trial. Louisiana then sought and won a third death
sentence, but the delays allowed Rideau to survive until 1972, when the
Supreme Court, in Furman v. Georgia, vacated every capital conviction in the
country. After Furman Rideau was resentenced to life imprisonment, and his
court-appointed attorneys bid him farewell, saying they had done everything
they could for him. Sent to Angola, a former slave plantation that by the
1970s was "the most violent prison in America," he was left to rot but
instead built an extraordinary career. He started reading, then writing, and
eventually became a respected, award-winning journalist from behind
Angola's walls. Life magazine called him "the most rehabilitated prisoner in
America," but partly because one of his former hostages lobbied hard for his
perpetual confinement, his repeated appeals for clemency went nowhere.

That is, until habeas corpus again came to his rescue. A literary scholar
named Linda LaBranche took an interest in his case and started poring over
old jury selection records. She found incontrovertible evidence of racial
discrimination in Rideau's trials, and through the flexible, open-ended
provisions then permitted in federal habeas practice, she was able to help
secure Rideau a fourth shot at justice in 2005. This time, ably represented by
a team of pro bono attorneys, Rideau was convicted of manslaughter rather
than premeditated murder. Having already been incarcerated for forty-four
years, a period twenty-three years longer than the maximum sentence for
manslaughter, Rideau went free. He now lives in Baton Rouge, where he has
settled down with LaBranche and a brood of cats. "I'm only here today
because of habeas corpus," he said in a recent interview. "It saved my life."

Rideau's commutation and ultimate release signal the enduring potency of
habeas corpus, but also its practical impotence. What jurists have long
called "the Great Writ of Liberty" did its work, but at an excruciating
pace. That Rideau's case unfolded during a period of relative vitality in
habeas jurisprudence makes his story all the more troubling. Since the
1990s, lawmakers have increasingly circumscribed the writ, imposing rigid
time limits and erecting formidable barriers between state and federal
courts. In today's legal climate, a defendant like Rideau would have almost
no chance of returning to freedom or even escaping execution. Habeas is
becoming "an illusory writ," says George Kendall, one of Rideau's lawyers
and a habeas and death penalty expert. In the war on crime, the war on
terror and the new war against undocumented immigration, the Great Writ
is being gutted.

Paul Halliday's sweeping, scrupulously researched Habeas Corpus: From
England to Empire
examines the capacities and contradictions of this
remarkable legal device. A historian at the University of Virginia and an
occasional contributor to amicus briefs in noteworthy habeas cases, Halliday
dismisses conventional paeans to the writ. Focusing less on landmark
decisions than on thousands of quotidian cases from the sixteenth to the
eighteenth century, recorded on parchment and bound with leather thongs,
he pieces together an ambivalent story with unexpected origins. Rather than
heralding habeas corpus as a "palladium of liberty," he shows how, over the
course of centuries, habeas has extended state power as well as constricted
it, facilitated empire as well as regulated its reach, and how, in periods
of crisis and demagoguery, princes and parliamentarians have muffled the
"sighs of prisoners" despite the venerable writ's promise to hear them.

In early modern England, the judiciary was not a separate branch of
government but an extension of the sovereign's law, Halliday explains. Writs
of habeas corpus, accordingly, functioned less to safeguard individual
liberty–still an embryonic concept–than to regulate the conduct of jailers.
Faced with a polyglot legal landscape in which myriad entities, from
ecclesiastical courts to justices of the peace, had been granted the franchise
of imprisonment, powerful jurists, especially on King's Bench, the common
law court upon which the monarch theoretically sat, used habeas corpus
to review the decisions of lesser magistrates in order to ensure that
his majesty's subjects were lawfully detained. In this way, Halliday argues,
enterprising judges close to the crown made themselves into a superior court
and "put themselves at the heart of the state."

Acting in the name of the sovereign and asserting the authority to "monitor
the work of all other jurisdictions," King's Bench (Queen's Bench when the
monarch was a woman) deployed the writ in an extraordinary array of cases,
reshaping it in the process. Impressed soldiers, asylum inmates, slaves and
prisoners of war sought release through habeas proceedings, sometimes
successfully. Long before the development of modern family law, women
called on the writ to escape abusive husbands, though they had to convince
the court that a man's violence exceeded "the lawful government of his
wife." Forged in common law rather than by statute, writs of habeas corpus,
in the hands of determined judges, could reach almost any detainee, held
under any circumstances, located anywhere under British control.

In the turmoil of the seventeenth century, the judiciary went further. If habeas
began as a "writ of the prerogative by which the king demands account for
his subject," Halliday writes, the justices of King's Bench increasingly
claimed the powers of sovereign prerogative "for their own use, thereby
making themselves the sun that lit the heavens." As the crown was weakened,
judges asserted their independence, with startling results. In the wake of
revolution in the late 1680s–"a period of rampant fear," with war raging in
Ireland and an invasion from Catholic France looming–King's Bench
reviewed the records of 147 detainees charged with treason and other
"wrongs against the state" and ordered "bailed or discharged 80 percent," at
a time when the very survival of the government hung in the balance. What
started as a means of consolidating power had become a check on the
powerful.

This was the golden age of habeas corpus, Halliday contends. Although
Whiggish histories have depicted the Great Writ as marching ever forward,
spreading freedom as it goes, Halliday shows that by the late eighteenth
century, when Enlightenment revolutions were breaking out on both sides of
the Atlantic, habeas corpus was in retreat. The advancing force was empire.
While in one sense the centralizing authority exercised through habeas
review standardized and thus facilitated the imperial reach of British law,
the writ's promise to apply the law uniformly inevitably faltered before the
inequalities and injustices of colonialism. Habeas corpus "traveled the
globe," Halliday observes, but "suspension followed, like a shadow."

During the American Revolution, Parliament suspended the writ and for
the first time made distinctions between detainees charged with committing
offenses at home and abroad, with the result that "hundreds of American
sailors" captured at sea were denied habeas relief and held indefinitely
"not as POWs, but as traitors or pirates." In South Asia, habeas corpus
arrived with the East India Company, but Halliday shows how statutory
limitations on habeas–a topic too often ignored in the literature, he claims–
"put Indians beyond the bounds of subjecthood" and empowered colonial
governors to define "criminal tribes" and imprison or deport whole groups
without trial. In response to the Mau Mau rebellion of the 1950s, hundreds
of thousands of Kenyans, including Barack Obama's paternal grandfather,
were rounded up, tortured or placed in concentration camps without judicial
review. Habeas corpus cast no light of liberty there.

Halliday focuses mainly on sixteenth- and seventeenth-century England, but
his attention to the perennial disappointments of the writ and its invidious
intersections with empire make for fascinating reading in the twenty-first-
century United States. Although habeas corpus is embedded in the
Constitution and has been suspended by Congress only once, during a case
of genuine rebellion in 1863, it faced epic challenges in the wake of
September 11, when the Bush administration asserted unprecedented powers
to unilaterally declare people "enemy combatants" and detain them at will,
indefinitely and without independent review of any kind. Halliday's book
suggests that the White House had ample, if selective and legally dubious,
precedent for its aggressive posture. In response to "detestable conspiracies,"
both real and imagined, various British governments had pioneered all
manner of habeas circumventions: removing prisoners to other countries,
holding them on ships and building special prison camps on remote
islands, where, "surrounded by waves," detainees were kept "beyond law's
gaze." When challenged by the courts, administrators had sought and often
won legislation to strip noncitizens of legal protections, indemnify jailers
"who had done the ugly work" or simply suspend habeas corpus altogether–
an increasingly common practice as the British Empire, and resistance to it,
grew. In defending rendition, enhanced interrogation and indefinite
detention at Guantánamo, legal theorists in the Bush administration thus
borrowed from repressive tactics developed in colonial Ireland, Jamaica and
New Zealand–conquered places that allowed the British sun never to set
but where the law was too often put to sleep.

Halliday posits that "the history of habeas corpus traces an ongoing tension
between the logic of detention and the persistent judge." By 2004 it seemed
the judge might again be gaining the upper hand. In three cases decided in
June of that year, as images of prisoner degradation at Abu Ghraib spread
around the world, the Supreme Court condemned the Bush administration's
"unchecked system of detention" and breathed new life into habeas corpus.
Narrow majorities ruled on a number of key issues: citizens and aliens alike
retain their habeas rights, even if they are declared enemy combatants; the
executive's war powers do not insulate it from judicial review; and writs of
habeas corpus have the power to reach any jailer anywhere who is subject to
US law, even at Guantánamo Bay, which is officially Cuban territory but has
been controlled by the United States since the Spanish-American War.
Rejecting the Bush administration's most expansive arguments, the justices
noted that the founders, having suffered British despotism, regarded
"unlimited power" as "especially hazardous to freemen." As Justice
O'Connor famously commented, "A state of war is not a blank check for the
President."

The Court's rulings marked another milestone in the history of the Great
Writ, yet the aftermath bears out Halliday's clear-eyed approach. Following
the advice of Justice Scalia, who accused his fellow justices of "judicial
adventurism of the worst sort" (ironically, just the sort of adventurism
that created habeas and sustained it over four centuries), Congress in 2005
stripped Guantánamo detainees of their habeas rights, reinforcing Halliday's
contention that legislators can be as hostile to civil liberties as
executives. In two subsequent cases, most categorically in Boumediene v.
Bush
(2008), the Court struck back, again rejecting President Bush's
determination to "govern without legal constraint" and Congress's
willingness to let him. The majority ruled that under the Constitution
lawmakers have no right to suspend the writ selectively and that military
tribunals, as set up by the Pentagon, provide no "adequate substitute" for
impartial, adversarial judicial review. Sweeping in scope, the decisions
nonetheless left the vast majority of detainees in legal limbo: still incarcerated,
still awaiting their day in court. Almost a decade after its creation–despite
constitutional censure and promises by President Obama to shut it down–
the prison camp that Amnesty International has called "the gulag of
our times" remains mostly insulated from the rule of law. On the page,
habeas corpus may have triumphed over the Bush administration's war of
fear, but on the ground the "logic of detention" continues to unfold.

This disjuncture between promise and practice is equally pronounced, if
less discussed, in other areas of modern US law. In the realm of immigration
enforcement, where federal detention has expanded most rapidly in recent
years, similar tensions have developed between the judiciary and the
political branches, and with similar results. In 2001 the Supreme Court held
in INS v. St. Cyr that immigration detainees have habeas rights and that
deportation hearings managed by the Justice Department, an executive
agency, cannot be walled off from judicial review, as Clinton-era statutes
tried to do. In 2005 Congress responded with the Real ID Act, which in
addition to setting up the rudiments of a controversial national ID card
system, included scarcely noticed provisions to paralyze the writ of habeas
corpus in immigration cases without actually killing it. By imposing
thirty-day federal filing deadlines and limiting the purview of the judiciary
to questions of constitutional law rather than the factual record of individual
cases, the statute preserved habeas in name but in effect made it unavailable
to thousands of detainees each year. "The government has so chipped
away at habeas in immigration cases as to make it an almost meaningless
right," says Lee Gelernt, an ACLU attorney who is building a case to
challenge the new law. He adds that an executive-only approach to
immigration enforcement has continued under the Obama administration,
which detained 380,000 individuals on immigration violations in 2009,
almost none of whom are provided access to counsel or even an independent
court hearing, much less habeas review.

In conventional criminal law, the United States is unique in using habeas
corpus primarily as a postconviction remedy. Invoking the writ successfully
has never been easy, as the case of Wilbert Rideau makes clear.
Nevertheless, postconviction habeas developed into an important alternative
to direct appeals and as a mechanism of equity relief, especially in death
penalty and civil rights cases. During the divisive crime debates of the
1990s, however, Congress passed the Antiterrorism and Effective Death
Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but
the most capably represented and egregiously wronged criminal detainees.
Extending legalistic restrictions already imposed by the Rehnquist Court,
the law requires prisoners to exhaust all state remedies before turning to
federal court, limits the ability of federal judges to question the
decisions of trial courts and imposes various administrative burdens on
petitioners, including strict deadlines for initial filings–all of which add
up to insurmountable barriers for most inmates, who tend to be indigent,
poorly educated and unrepresented by counsel. "AEDPA has been awful for
criminal defendants," says Vanita Gupta, an ACLU attorney who under more
forgiving state rules famously helped overturn a host of wrongful drug
convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket
restrictions have created a morass of litigation and severely curtailed the
reach of the Great Writ." Even as America's prison population has swollen to
an unparalleled size, a key conduit for release has thus been shut off, in
effect rendering the country's first civil right an inaccessible right. As
during the repressive ascendance of the British Empire, lawmakers in the
United States have "bound the judge and muffled the prisoner's sighs."

Halliday's history of setbacks and shortcomings is indeed discomfiting.
"Beginning with royal power" and ending with "detention of people on a
scale that defies judiciousness," his book suggests that the "idea of habeas
corpus"–that no person shall be detained except by due process of law–
"has been more powerful outside of courtrooms than inside them." Yet his
book is not without hope. Halliday shows how innovative and persistent
judges turned an instrument of the king's prerogative into a "writ of majestic,
even equitable, sweep" and managed, in some cases at least, to defend
it against "a legislative onslaught on liberties of every kind." In thwarting
the Bush administration's absolutist leanings, the Supreme Court has
recently shown glimmerings of that same independence, but the results
remain unclear. In the twenty-first century, habeas corpus can be as vital for
the protection of individual liberties as it was in the seventeenth, but
courageous judges–precisely the sort excoriated by Scalia–will have to
make it so.

Robert Perkinson teaches at the University of Hawaii at Manoa and is the
author of Texas Tough: The Rise of America’s Prison Empire.

http://www.thenation.com/article/157299/gutted-writ-habeas-corpus
Copyright © 2010 The Nation

PLEASE FORWARD WIDELY!!!

January 2, 2011

Hi everyone!

    Lynne Stewart's most recent situation is discussed in this audio report with Ralph Poynter (Lynne's husband) interviewed by "Taking Aim's" Mya Shone and Ralph Schoenman:

http://takebackwbai.org/lynnestewart/

Ralph Poynter was able to see Lynne on Friday, Saturday, and today (three days in a row)!!!  She has been moved to a much more comfortable situation.  Please listen in to this important report!

    And, let me know what you think!

Yours,
Russell

 

Greetings
 
It is official. Lynne Stewart, our shero and people's lawyer is at this very moment in transti to the Oklahoma prison complex which is a transit point for the prison system.

We still have no confirmation as to where they will send her. 

 
They may keep her there for two weeks until this is determined.  Clearly, the request of friends and family that she be allowed to remain at mcc until that time, has been deliberately disregarded. 
 
Clearly the efforts of the police state to break and abuse her spirit is evident, in that she could have just as easily been allowed to remain close to her love ones for the holidays, instead of being handcuffed and shackled to the floor of a prison transport plane  to Oklahoma transit prison. This is business as usual policy for the  U.S. Prison system and we hope, against all hope, that Lynne was not shackled in this manner.
 
Continue to write, write, write.  Her letters will follow her and when she arrives at her destination i.e. assigned place of imprisonment, she will need them as much as we will appreciate them.
 
Lynne Stewart  #53504-054
FTC OKLAHOMA CITY
P.O. BOX 898801
OKLAHOMA CITY, OK  73189

Thank you much.

 
Ralph Poynter
Lynne Stewart Defense Committee

Round Two: Third Circuit Court Panel Re-Hears Issue of Abu-Jamal's Death Penalty on Orders of Supreme Court

Wed, 11/10/2010 – 10:39 ­
http://www.thiscantbehappening.net/node/300
by:
Dave Lindorff

The three-decades-long murder case of Philadelphia journalist Mumia Abu-Jamal, who has sat in solitary in a cramped cell on Pennsylvania’s death row for 28 years fighting his conviction and a concerted campaign by the national police union, the Fraternal Order of Police, to execute him, was back in court Tuesday, with a three-judge federal Appeals Court panel reconsidering its 2008 decision backing the vacating of his death sentence, on orders of the US Supreme Court.

The three judges, Reagan-nominated Anthony Sirica, Bush Sr.-nominated Robert Cowen, and Clinton-nominee Thomas Ambro, two years ago agreed with a lower court judge, Federal District Judge William Yohn, that the jury in Abu-Jamal’s 1982 trial had been provided with a poorly-worded and confusing jury ballot form and flawed instructions from the trial judge during the penalty phase. The confusion, they decided, could have misled jurors into thinking, incorrectly, that in order to consider a mitigating factor against voting for the death penalty, all 12 of the jurors would have had to agree to it. In fact, under the law, any individual juror can decide that there is a mitigating factor against a death sentence. Only aggravating factors that would argue for a death sentence have to be found by all members of the jury to be applicable.

The 2008 ruling was widely seen as a big victory for Abu-Jamal and his attorney Robert R. Bryan, as it meant either that he would avoid execution, instead serving a life sentence without possibility of parole, or that the Philadelphia district attorney would have to request a new penalty phase trial, with a new jury hearing arguments for and against imposition of a new death sentence.

Last January, however, the US Supreme Court threw a wrench into the case, ruling in an Ohio murder case involving Frank Spizak, a neo-Nazi once sentenced to death for random killings of jews and blacks who had attended his trial wearing a Hitler mustache, that a lower court order vacating his death sentence had been in error. That case had also focused on the confusing language of a jury ballot form, and of the judge’s instructions to the jury.

The high court, which also had pending before it at the time an appeal by the Philadelphia DA of the Third Circuit decision in Abu-Jamal’s case, sent that case back down to the Third Circuit, asking Judges Sirica, Cowen and Ambro to review their decision in light of its decision in the Spizak case.

At Tuesday’s hour-long hearing, Assistant DA Huge Burns tried to make the case that the issues in the Abu-Jamal jury instructions and ballot form were “almost identical” to those in the Spizak case. Abu-Jamal’s attorney, Widener University law professor Judith Ritter, who had argued the same issue successfully before the same judges as an assistant counsel in the 2008 hearing, made the counter argument that the problems with the judge’s instructions and the jury form in the Abu-Jamal case were “fundamentally different” from those in the Spizak case.

The three judges seemed, in their initial remarks and in their questions, to be leaning towards the defense view.

As Judge Cowen asked, following DA Burns’ argument, “Doesn’t the jury form in Spizak significantly differ from our form? I found six differences.” At another point in the hearing, he said, “Aren’t the cases different in more than degree, but in kind?”

Judge Ambro noted that in the Abu-Jamal case, Judge Albert Sabo had told the jurors, “Remember again, your verdict must be unanimous.” Ambro observed, “That’s sort of a general over-arching instruction.” He and Cowen both noted that the Spizak jury had never been told their decision had to be unanimous, while the word “unanimous” was used repeatedly in the Abu-Jamal case, both in the judge’s verbal instructions and on the jury form.

Burns tried to counter that while “unanimous” may not have been used in the Spizak case, the jury was addressed as a single entity, at least implying unanimity might be required for the finding of a mitigating factor.

Attorney Ritter honed in on the differences between the Spizak and Abu-Jamal cases, saying, “In Spizak, you had an absence of instructions regarding mitigation that could have confused the jury. Here (in the Abu-Jamal case), it’s not silent. Look at number 2 (in the jury ballot form). It starts, “We the jury have found unanimously…”

Ritter argued for Abu-Jamal alone at this hearing following the surprise departure of Abu-Jamal’s lead attorney Robert R. Bryan only days before the hearing. Abu-Jamal reportedly asked Bryan last week to simply attend the hearing, but to not address the court, leaving that job to Ritter. Bryan says Abu-Jamal apparently felt that since Ritter had won the argument in 2008, she was a better choice than Bryan himself, who many Abu-Jamal supporters felt was somewhat disorganized and less than incisive at the 2008 hearing. Bryan says his proposal that he make introductory remarks and respond to any questions from the judges at the conclusion of the hearing was rejected by Ritter and Abu-Jamal, so he submitted a brief to the court asking to be removed from the case. The judges agreed to his request last Friday. It is the second time Abu-Jamal has dumped his lead attorney on the eve of a critical hearing. In 1999, just as Judge Yohn was discussing dates for a hearing on his habeas appeal, Abu-Jamal fired lead attorney Leonard Weinglass and assisting attorney Dan Williams, angry over a book on the case that Williams had just published. He replaced them with two attorneys, Eliot Grossman and Marlene Kamish, who had little or no death penalty law experience, dropping them later in favor of Bryan.

In the end, while Presiding Judge Sirica was harder to read, Judges Cowen and Ambro, at least, didn’t seem to have been convinced by Burns. “You haven’t met Miss Ritter’s argument,” Cowen said. “She pointed out some differences between the (Spizak and Abu-Jamal) forms that are significant.”

After which Judge Ambro said, “For example, the word ‘unanimous’ was not used in Spizak.”

Judge Cowen added, “In our case, ‘unanimity’ was used time and time again, and in quite close proximity to where you find things about mitigating circumstances.”

Of course, even if the three judge panel decides to reaffirm it’s 2008 decision, the DA’s office will almost certainly appeal again to the Supreme Court, where the same five judges who ruled against Spizak and referred the Abu-Jamal case back to the Third Circuit panel could vote to reverse the Third Circuit. In that event Abu-Jamal would have his death penalty reinstated.

If the high court agreed with the Third Circuit, or if it chose not to take the case and let the ruling stand, then the DA would have to decide whether to leave Abu-Jamal with a life sentence, or to ask for a new penalty phase trial, which would take place back in state court.

The defense is hoping for a retrial of the penalty, since that would at least offer Abu-Jamal the chance to introduce new evidence regarding the shooting of Police Officer Daniel Faulkner. For example, the prosecution made a big point of highlighting the testimony of two witnesses, prostitute Cynthia White and taxi driver Robert Chobert, who both described the shooting of Faulkner by Abu-Jamal as an “execution,” with Abu-Jamal standing astride the fallen cop and firing repeatedly at him at nearly point-blank range. The problem with that story is that only one bullet–the one that struck Faulkner in the middle of his forehead–hit the officer, yet there no bullet impacts can be seen in crime scene photos of the area on the sidewalk where Faulkner lay, and police investigators reported finding no such marks either.

A test of a gun similar to Abu-Jamal’s, firing similar metal-clad, high-velocity Plus-P ammunition at a section of old sidewalk concrete, proves that such impact marks should have been clearly visible. While a rehearing of the penalty phase of the trial would not be able to directly raise the issue of guilt, in a penalty phase re-hearing, the defense could be expected to present evidence that the “execution” scenario presented to the jury by the prosecution simply couldn’t have happened, and witnesses would likely be called to challenge the story. That in turn would raise the risk, for the prosecution, that evidence — or a witness recantation — could open the door to a new challenge to Abu-Jamal’s conviction.

Even if the Third Circuit or the US Supreme Court rules against Abu-Jamal, and his original death sentence is reinstated, it is not the end of the road in this long-running case, however.

Back on December 18, 2001, when Federal District Judge Yohn tossed out Abu-Jamal’s death penalty, he noted in his ruling that he had “mooted” four other defense claims of unconstitutional flaws in his death penalty hearing, on the grounds that there was no need to examine these, since he had already decided to vacate the penalty. As Abu-Jamal defense team attorney Christina Swarns notes, “We have an absolute right to have those claims considered.”

In other words, if the death penalty is reaffirmed, Abu-Jamal will be back before Judge Yohn again, where other powerful and compelling objections to the way his initial trial was conducted will have to be reviewed. Among the complaints:

Prosecutor Joseph McGill’s use of a statement made by Abu-Jamal when he was only 15, quoting Chinese Chairman Mao Tse-tung that “Power flows from the barrel of a gun,” in an effort to sway jurors towards imposing a death penalty.

The rushing of the case and the inadequacy of Abu-Jamal’s legal counsel, attorney Anthony Jackson, with Judge Sabo ordering the penalty phase hearing to begin the day following the jury’s guilty verdict, and Jackson not requesting a delay to allow him to prepare. As a result, Jackson called not one character witness to allow Abu-Jamal to develop a case for mitigating factors.

Prosecutor McGill improperly advised jurors, with the approval of the judge, that they were “not asked to kill anybody,” because there would be “appeal after appeal after appeal.” The Supreme Court and the Third Circuit, as well as the Pennsylvania Supreme Court, have all repeatedly overturned death sentences because of prosecutors making similar statements to juries, on the grounds that it tends to remove from jurors any sense of the moral consequences of their profound decision.

Finally the defense made the claim that the prosecution withheld form the defense information it had that local police and the FBI had called off years of surveillance of Abu-Jamal after concluding that, as the FBI put it in a note calling off monitoring of Abu-Jamal, “”In March 1973, per bureau instructions, captioned subject (Abu-Jamal) was deleted from ADEX and no additional investigation conducted concerning his activities. Sources, however, have continued to report periodically on COOK (Abu-Jamal’s family name) and, although he has not displayed a propensity for violence, he has continued to associate himself with individuals and organizations engaged in Extremist activities.”

As Asst. DA Burns has said, “This case will go on for years.”

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Holy Land 5 case reveals double standard in enforcement of US law
Report, The Electronic Intifada, 20 July 2010 

An US federal agent at the Holy Land Foundation in Bridgeview, Illinois, as the contents of the office are seized on 4 December 2001. (AFP PHOTO/Scott Olson)


“I had no intention in my mind and my heart but to help the Palestinian indigenous people who are and have been facing unusual economic distress … nothing in my life was as satisfactory and as self-fulfilling as knowing that I could sign a check. It is the only evidence you have against me, signing the check.”

At a special session on Palestinian political prisoners at the US Social Forum in Detroit last month, Noor Elashi recited that statement given by her father, Ghassan, when he was sentenced by a federal court in May 2009. Ghassan Elashi is the co-founder of the Holy Land Foundation (HLF), which was the largest Muslim charity in the US before it was shut down by the Bush Administration in 2001. 

Sending aid not just to Palestinians living under the thumb of Israel’s military occupation, but to people in Bosnia, Albania, Chechnya and Turkey, the HLF was also involved in local and national humanitarian relief. The organization set up food banks on the East Coast, helped victims of the 1995 Oklahoma City bombing and provided assistance to people after floods and tornadoes devastated parts of Iowa and Texas in the 1990s.

Three months after the 11 September 2001 attacks, the US Treasury department froze the HLF’s bank accounts as the Executive branch shut down the organization under the auspices of the PATRIOT Act. Using a new provision called the Material Support Law, the US State Department accused the five HLF founders — now dubbed the Holy Land Five — of providing “assistance” to designated “terrorist groups” (namely Hamas) in Palestine. The Bush Administration immediately closed the organization and launched aggressive charges against the charity workers. There was no hearing, and the prosecution was authorized to use secret evidence.

Several other American faith-based relief organizations were also caught in the post-11 September hysteria of charity closures under the same new laws and executive orders. The legislation has been challenged by civil rights groups in the US Supreme Court as unconstitutional, but was upheld and used to sentence Ghassan Elashi, a father of six who immigrated to the US in 1978, to 65 years in prison.

On 21 June 2010, the Supreme Court ruled to continue to authorize prosecutions of charities under the Material Support provision, disappointing families and supporters of the Holy Land Five and troubling US-based organizations that directly support grassroots humanitarian programs in the Middle East.

Noor Elashi, a 24-year-old master of fine arts candidate at the New School in New York City, told The Electronic Intifada that her father’s legal team is in the middle of appealing the entire HLF case. “The attorneys are working with the American Civil Liberties Union and the Center for Constitutional Rights,” she said. “The overall impression is that the upholding of the Material Support Law is not the best thing that could happen regarding this case. It’s not the most positive step. But that said, there are so many other grounds for appeal, such as evidentiary issues and the prosecution’s use of an anonymous witness.”

Prosecutors working for the Bush Administration accused the HLF of supporting Hamas by trying to “win hearts and minds” of the Palestinian population through humanitarian assistance, and that the charities HLF worked with were “front groups” for the political party. But after several years of wiretapping phone lines, seizing documents and following money trails, the prosecution couldn’t support its allegations of an HLF-Hamas connection. Elashi said they then resorted to calling on an anonymous Israeli intelligence officer, who called himself “Avi,” as a key witness who told the jury he was an expert who could “smell Hamas.”

“It was the only time in the history of the United States that a witness inside a courtroom was allowed to remain anonymous, so the defense couldn’t cross-examine him,” Elashi said. “That in and of itself is huge grounds for appeal.” 

In fact, Israeli intelligence officers, in an unprecendented move, were allowed to testify in secret using pseudonyms and disguises and without the defense being given a full opportunity to cross-examine them during the 2006 federal trial in Chicago of American citizen Muhammad Salah and stateless Palestinian Abdelhaleem Ashqar. Accused of “racketeering” charges related to fundraising for Hamas, both men were acquitted of all the terrorism-related charges, but each was found guilty on single counts of obstruction of justice; Salah for lying on a form in a civil case and Ashqar for refusing to testify before a grand jury.

Additionally, the US government infamously led a lengthy, repressive, and racist assault against the Palestinian-American professor and political activist Dr. Sami al-Arian. Al-Arian, who remains under house arrest following a six-year prison sentence — which included spending 43 months locked in solitary confinement — was also charged, as the HLF were, under the Material Support Law.

Elashi stressed that the HLF was never convicted of giving charity to designated “terrorist” groups, but in the end they were convicted of conspiring to give charity to zakat or charitable committees in Palestine.

“I feel like at this point, anybody is at risk,” Elashi said. “This is the time to be worried. What essentially can happen is that any American can be prosecuted for giving any type of charity, or any type of aid. Even a former president is at risk of being prosecuted,” she said, referring to how Jimmy Carter has helped train election workers in Lebanon.

“The problem with the law is that it’s way too vague,” Elashi added, “and because it’s way too vague, it really singles out groups from the rest of the population, and typically singles out Muslim charities as well as Arab-American individuals. And it’s all being done in the name of national security, but what it’s really doing is shredding the constitution and causing an economic chokehold on occupied Palestine.”

Elashi told The Electronic Intifada that despite the circumstances, her father is extremely hopeful about the appeals process. “Opening the charity was a form of optimism,” she said. “He knew from the first day that when he started the charity it was going to be a challenge. Soon after, he got attacked from pro-Israeli politicians and lobbyists, who tried to link the charity to Hamas and acts of violence. He continued to do everything possible to make sure that the charity kept running, and did pretty much what every other American aid organization did — USAID, the Red Cross, and the UN all gave money to the very same zakatcommittees that were listed in the HLF indictment.”

The Elashi family has not been allowed to visit Ghassan in prison, Noor Elashi said, for quite some time. In the fall of 2009, after one of the visits, a prison guard told the inmates and the families to disperse. But Noor’s younger brother Omar — who lives with Down’s Syndrome — ran to hug his father, and at that point the prison guard yelled at Ghassan, saying that he disobeyed orders. The guard filed a complaint that led to an internal investigation, and the prison ruled that there would be a six-month to one-year visitation ban.

Even after Ghassan was moved to another prison, the visitation ban moved with him. “We get two phone calls from him every month, which is significantly less than we would get from any other prison,” Elashi said. “We hope to finally see him in September or October.” Ghassan is currently being held inside a Communications Management Unit (CMU) in Illinois, a block within some prisons that are nicknamed “little Guantanamos” due to the overwhelming population of Muslims and people of Arab and Middle Eastern descent.

Defense Attorney Nancy Hollander, on behalf of the Holy Land Five, told The Electronic Intifada that the legal team is optimistic about the appeal. “We are currently working on our brief to the Fifth Circuit,” Hollander remarked. “The current deadline is 3 August, but that might get extended into September. All of our clients have been moved to other prisons. We are in contact with them regularly. We remain hopeful.”

Meanwhile, private, US-based, pro-Israel groups are currently sending millions of dollars every year to support illegal settlement colonies and right-wing Zionist settlers in the occupied West Bank. The New York Times reported on 5 July that at least 40 US-based organizations are actively donating more than $200 million in tax-deductible “gifts” to build and sustain illegal settlements. According to theTimes, some of the donations also pay for “legally questionable” items such as bulletproof vests, guard dogs, weapon accessories and armored security vehicles (“Tax-Exempt Funds Aid Settlements in West Bank“).

Daniel C. Kurtzer, the former US ambassador to Israel, told the Times “a couple of hundred million dollars makes a huge difference” in terms of supporting the settlement industry, and if carefully focused, “helps to create a new reality on the ground.”

As of now, there is no indication that any of these faith-based, pro-settlement groups will face the kind of treatment and lengthy, expensive trials under the guise of the Material Support Law like those the Holy Land Five have faced. Noor Elashi told The Electronic Intifada that there is an obvious double standard being applied and enforced against her father and his colleagues.

However, she said that her father “feels his ordeal like he feels a fly on his shoe … He believes that it’s going to pass, and he’s still very proud of everything he’s accomplished. His work has been the most rewarding part of his life. He’s helped people rebuild homes and has given hungry people food. That’s what nourishes him. So he’s optimistic about the appeal.”

At the US Social Forum in Detroit, Elashi read the last part of her father’s statement upon his sentencing. “We helped Palestinian orphans and needy families, giving them hope and life,” he stated. “We gave them hope and life … And what was the occupation giving them? It was providing them with death and destruction. And then we are turned criminals. That is irony.”


Please forward widely…

The Holy Land Foundation Case

Friday, June 25, 2010

Defending My Father … and the Constitution

By NOOR ELASHI

The case perhaps most notably authorized by the Material Support Law, which was upheld by the Supreme Court on Monday, was that of the Holy Land Foundation, once the largest Muslim charity in the United States. My father, Ghassan Elashi, co-founded this charity, and after two lengthy, expensive trials, he’s now serving a 65-year prison sentence.

 

The panel was split 6-3, the valiant minority being Chief Justices Stephen G. Breyer, Ruth B. Ginsburg and Sonia Sotomayor. Writing the majority opinion, Chief Justice John G. Roberts concluded that the Material Support Law is not too vague and does not violate the First Amendment, opposing the extensive arguments of constitutional law expert David Cole who, along with the Center for Constitutional Rights, challenged the law in the Supreme Court. Chief Justice Breyer wrote the dissenting opinion, stating that the law could criminalize speech and association “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.”

 

The Patriot Act, which expanded a provision in the Material Support Law to include those who provide “assistance,” essentially made it illegal to send charity to the U.S. Treasury Department lists of desig nated terrorists. The Holy Land Foundation, or HLF, was never found guilty of giving charity to a desig nated terrorist organization. Rather, they were convicted of conspiring to give material support in the form of humanitarian aid to Palestinian charities called “zakat committees” that prosecutors alleged were fronts for Hamas, which was designated in 1995.

 

A Texas jury deadlocked in the first trial in 2007, defending the defense’s main argument: that USAID, Red Cross, the UN, CARE and many international NGOs sent money to the same zakat committees listed on the HLF indictment. But in the 2008 retrial, after essentially the same arguments, the jury returned all guilty verdicts. My father is currently being held in a Communications Management Unit in Marion, Illinois, a prison that’s been called “Little Guantanamo” since two-thirds of the inmate population is of Middle Eastern descent.

The Supreme Court decision is not the most optimistic news regarding the HLF case, which is now under appeal. Nevertheless, defense attorneys assert they still have strong grounds for appeal, including the prosecution’s evidentiary errors and anonymous expert from Israel who claimed he could smell Hamas and testified under a fictitious name, thereby preventing defense attorneys from effectively cross-examining him.

 

According to the ACLU, the Material Support Law is “in desperate need of re-evaluation and reform.” The Supreme Court didn’t see that need, but hopefully, Congress will see that the law is shredding our Constitution in the name of national security and undermining bona fide humanitarian efforts, thus, causing an economic chokehold on Occupied Palestine.

 

Noor Elashi is a writer based in New York City.

Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing

Mark Hamblett
New York Law Journal

http://www.law.com/jsp/article.jsp?id=1202462743367&Perjury_Charge_Is_Focus_of_Debate_Over_Lynne_Stewart_Resentencing

June 16, 2010

Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.

Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.

Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a “bubble” protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.

Read the prosecution’s sentencing memorandum.

“The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony,” the prosecutors argue in their memo.

They say Stewart’s sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.

Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl’s initial sentence “reasonable and just.”

Read Fink’s filing and the defense sentencing memorandum.

They argue that Stewart was being truthful when she claimed there was a “bubble” or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.

Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was “dramatically unreasonable” and “overstated the seriousness” of her conduct.

“Moreover, this court’s determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts,” they said.

Stewart’s sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.

In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called “breathtakingly low” considering Stewart’s “extraordinarily severe criminal conduct.” Walker said it was plain the court should have vacated the sentence as substantively unreasonable.

The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.

But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that “no victim was harmed” when Stewart issued the press release.

Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of “punting” on the biggest issues in the case.

ENHANCED SENTENCE

Stewart was convicted on Feb. 10, 2005, of conspiracy to defraud the United States; conspiracy to provide and conceal the provision of material support to a conspiracy to kill persons in a foreign country; providing and concealing the provision of material support to the conspiracy to kill persons in a foreign country; and making false statements to the U.S. Department of Justice and the Bureau of Prisons.

The “material” she provided came in the form of personnel — the sheik himself, who was supposed to be walled off from any contact with the Islamic Group through the use of Special Administrative Measures. Stewart and one of her co-defendants, Mohammed Yousry, signed affirmations promising to abide by the restrictions.

Koeltl pronounced sentence in 2006 and Stewart afterwards crowed outside the courthouse that she could do the 28 months “standing” on her “head.”

Messrs. Dember and Maimin, in their memo, said Stewart’s invocation of a “bubble” in spite of these signed affirmations was exposed during cross-examination as “a fabrication created for trial to attempt to justify her criminal conduct.”

They say cross-examination also revealed that Stewart was well aware of violent acts committed by Islamic Group, including the 1997 massacre of 58 tourists and security guards at an archeological site in Luxor, Egypt.

Also undermined during cross examination, they say, was Stewart’s claim that she was merely providing the sheik with zealous representation when she smuggled the messages from the prison.

“The evidence at trial established that Stewart intentionally and knowingly assisted in a terrorist murder conspiracy; that she was motivated to do so by her beliefs and ideology; and that her crimes included the defrauding of, and making repeated false statements to, the United States government,” they write.

The prosecutors said they were aware there were mitigating factors that might lead Koeltl to impose a sentence of less than 30 years, but they asked for a sentence that “substantially exceeds” the original. They did not specify those factors.

The prosecutors say they will make a more definite recommendation for the term Stewart should receive after they review her papers.

Fink and Shellow argue in their papers that Stewart was not lying about the “bubble” because the government had allowed her and other attorneys for the sheik to “operate in much the same way as Stewart without consequence” for over three years, and the government permitted Stewart to visit her client long after she issued the 2000 news release.

The defense attorneys cited a number of other terrorism cases where defendants have received sentences of between seven and 92 months imprisonment in spite of being eligible for the terrorism enhancement.

“In contrast to Ms. Stewart, many of these defendants expressed a willingness or desire to promote or participate in violence, and many of their crimes involved the negotiation for or provision of weapons,” they say.

The attorneys urged Koeltl to stand firm and continue to exercise the broad discretion he has in sentencing.

“This is particularly important in terrorism cases, where in a post- 9/11 context, our sentiments are inflamed,” they said. “We are angry, and rightly so, at defendants who are convicted of terrorism related crimes.

“The judges of the Second Circuit are clearly angry,” Fink and Shellow write. “Many of them believe that Ms. Stewart deserves a lengthy sentence. But Ms. Stewart’s sentence is not before them” and Judge Koeltl is in the “best position” to analyze the case.

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Newburgh Terrorism Case May Establish a Line for Entrapment

Nathaniel Brooks for The New York Times

Shamshad Ahmad, a physics lecturer and mosque leader in Albany , said government infiltration and deception carried a cost.

By WILLIAM GLABERSON
Published: June 15, 2010

· WHITE PLAINS — When four Muslim converts from Newburgh , N.Y. , were charged last year with planning to bomb Bronx synagogues and shoot down military planes at Stewart International Airport , officials described the plan as a chilling effort to commit local terrorism.

On Monday, the trial of the men was indefinitely postponed by a federal judge. But while this highly unusual turn of events threw much of the case into chaos, it helped clarify a central question: Did a shadowy informant encourage the men to plot mass murder, or did he go too far and manufacture a plan for mayhem?

The judge, Colleen McMahon, excused potential jurors on Monday and criticized the prosecutors for being late in giving the defense an investigator’s report suggesting that the men — a group of ex-convicts and drug offenders — were incapable of carrying out a complex attack without the informer, a fast-talker who was on the government payroll.

The dispute, as well as previous comments from Judge McMahon, suggests that the case will focus on the defense claim that the four were entrapped with promises of a $250,000 payment and a BMW, and that the men were so ill-equipped to plan an attack that none had a driver’s license or a car.

Infiltrators — civilian informers and government agents — have played a part in more than 30 terrorism investigations since the Sept. 11, 2001, attacks, including the plan to bomb the Herald Square subway station, the plot to blow up the Sears Tower in Chicago and the arrests last week of two New Jersey men on charges of seeking to join a militant group in Somalia.

But some terrorism experts say that the informant’s role in the Newburgh plot was more active than most, and that the case could define when a permissible sting operation becomes illegal entrapment.

“The degree to which the government seems to have led on the defendants is much more aggressive than we have seen in other cases,” said Karen J. Greenberg, executive director of the Center on Law and Security at the New York University School of Law, which tracks terrorism prosecutions.

Defense lawyers in the Newburgh case refer to the informant — Shaheed Hussain, a Pakistani who was an informant in an earlier terrorism sting in Albany that was controversial — as an agent provocateur who earned his keep by scouring mosques for easy targets. Mr. Hussain “proposed, directed, supplied, funded and facilitated every aspect of the ‘terrorist’ plot,” defense lawyers said in a court filing. He attended to every detail, they said, including assembling weapons when the defendants could not follow his instructions.

The prosecutors declined to comment. But in legal filings they have said the investigation was “exemplary law enforcement work” and argued that secret recordings would show that the leader of the group, James Cromitie, was a “hate-filled, virulent anti-Semite who wanted to commit terrorist acts against Jews and the United States .”

They say Mr. Cromitie, a career criminal, was the real instigator of the plan. Mr. Cromitie, 43 at the time, referred to Osama bin Laden as “my brother,” according to prosecutors.

In the elaborate sting, Mr. Hussain arranged for the plotters to pick up fake bombs. The prosecutors noted that Mr. Cromitie and his three co-defendants “actually showed up and placed what they believed to be improvised explosive devices” in front of two synagogues, the Riverdale Temple and the Riverdale Jewish Center. They were arrested at the scene.

In May, Judge McMahon declined a defense request to dismiss the charges because of Mr. Hussain’s role in the plot.

But she noted that the case was centering on the sting. “Did the government become aware of potential criminal activity and take action to neutralize a real terrorist threat,” she wrote, “or did it locate some disaffected individuals, manufacture a phony terrorist plot that the individuals would (and could) never have dreamed up or carried out on their own, and then wrongfully induce them to participate in it?”

The men — Mr. Cromitie, David Williams IV, Onta Williams and Laguerre Payen — could face life in prison if convicted of charges that include conspiracy and attempting to use weapons of mass destruction and antiaircraft missiles.

The entrapment defense seeks acquittal with the claim that a government agent fostered a crime that a defendant was not predisposed to commit. It has been notably unsuccessful in terrorism cases.

Ms. Greenberg of the Center on Law and Security said that of the more than 30 terrorism prosecutions involving informers since 2001, the center knew of no case in which the entrapment defense had been successful.

Still, civil liberties lawyers say they have been troubled as information has emerged in court cases about informants who have flattered and deceived Muslim men in one community after another. Christopher Dunn, the associate legal director of the New York Civil Liberties Union, said the case before Judge McMahon could define the limits of the terrorism sting.

“The Newburgh case,” Mr. Dunn said, “may be a pivotal test of just how far the government can go.”

Some lawyers argue that even an over-the-top performance by an informant who flashes money and pushes audacious terrorism schemes may serve the government well. Dru Stevenson, a professor at the South Texas College of Law who has written about entrapment in terrorism cases, said the government might want to foster the suspicion that comes from a clumsy infiltrator.

“If you have a person who is capable of committing terrorism,” Mr. Stevenson said, “you want them to worry that the person recruiting them at the mosque is an F.B.I. informer.”

But infiltration and lies have a cost, said Shamshad Ahmad, a physics lecturer at the State University of New York at Albany who is president of the local mosque. He knew the two Muslim men in the Albany plot, the mosque’s imam and a pizzeria owner, who were convicted after an intricate sting.

In Albany , Mr. Hussain, the same informant who later worked in Newburgh , spun out a fake money laundering plan that included a demonstration of a shoulder-fired missile, along with gifts and false friendship.

“I never imagined the United States would do this,” said Dr. Ahmad, who came to this country from India more than 30 years ago. “ Soviet Union I could have expected it. Third world country, yes. Mafia, yes. But not the Justice Department.”

June 3, 2010

Dear Friends of Lynne Stewart,

Forgive this hasty note updating Lynne’s situation.

A regularly scheduled follow up test to check on whether Lynne’s breast cancel had reappeared revealed that Lynne now had a spot on her liver. Lynne struggled with prison authorities to have a required biopsy and related tests conducted at her regular, that is, non-prison, Roosevelt Hospital. Her requests were denied and she was compelled to have the biopsy done in a notoriously inferior facility where the results could not be determined for a week as compared to the almost immediate lab tests available at Roosevelt.

During Lynne’s prison hospital stay she was shackled and handcuffed, making rest and sleep virtually impossible. A horrified doctor ordered the shackles removed, but immediately following his departure they were fastened on Lynne’s feet and hands once again.

She is now back in her New York City prison cell. Her attorneys have filed for a postponement of her scheduled July 15 court appearance where Federal District Court sentencing Judge John Koeltl is to review the original 28-month jail sentence that he imposed last year.

This sentence was appealed by government prosecutors, who sought to order Koelt to impose a 30-year sentence. The U.S. Court of Appeals, Second Circuit, was sympathetic to the government’s position and essentially stated that Koeltl’s 28-month sentence exceeded the bounds of “reasonableness.” Koeltl was ordered to reconsider. A relatively recent Supreme Court decision granted federal district court judges wide discretion in determining the length of internment. Koeltl’s decision took into consideration many factors that the court system allows in determining Lynne’s sentence. These included Lynne’s character, her service to the community, her health and financial history and more. He ruled, among other things that Lynne’s service to the community was indeed a “credit to her profession and to the nation.”

Contrariwise, the government and prison authorities see Lynne as a convicted terrorist. Lynne was the victim of a frame-up trial held in the post-911 context. She was convicted on four counts of “aiding and abetting terrorism” stemming from a single act, Lynne’s issuance of a press release on behalf of her client, the “blind” Egyptian Shreik Omar Abdel Rachman. The press release, that the government claimed violated a Special Administrative Order (SAM), was originally ignored as essentially trivial by the Clinton administration and then Attorney General Janet Reno. But the Bush administration’s Attorney General John Ashcroft decided to go after Lynne with a sledge hammer.

A monstrous trial saw government attorney’s pulling out all the stops to convince an intimidated jury that Lynne was associated in some way with terrorist acts across the globe, not to mention with Osama bin Laden. Both the judge and government were compelled to admit in court that there were no such “associations,” but press clippings found in Lynne’s office were nevertheless admitted as “hearsay” evidence even though they were given to Lynne by the government under the rules of discovery.

It is likely that Lynne’s request for a postponement will be granted, assuming the government holds to the law that a prisoner has the right to  partake in her/his own defense. Lynne’s illness has certainly prevented her from doing so. 

In the meantime, Lynne would like nothing more than to hear from her friends and associates. Down the road her defense team will also be looking for appropriate letters to the judge on Lynne’s behalf. More later on the suggested content of these letters.

Please write Lynne to express your love and solidarity:

Lynne Stewart 53504-054
MCC-NY
150 Park Row
New York, New York 10007

In Solidarity,

Jeff Mackler, West Coast Coordinator
Lynne Stewart Defense Committee

Lynne Stewart and the Guantanamo Lawyers:  Same Fact Patterns, Same Opponent, Different Endings?
By Ralph Poynter

In the Spring of 2002, Lynne Stewart was arrested by the FBI, at her home in Brooklyn, for materially aiding terrorism by  virtue of making a public press release to Reuters on behalf of her client, Sheik Abdel Omar Rahman of Egypt. This was done after she had signed a Special Administrative Measure issued by the Bureau of Prisons not permitting her to communicate with the media, on his behalf. 

In 2006, a number of attorneys appointed and working pro bono for detainees at Guantanamo were discovered to be acting in a manner that disobeyed a Federal Judge’s protective court order.  The adversary in both cases was the United States Department of Justice.   The results in each case were very different.


In March of 2010, a right wing group “Keep America Safe” led by Lynne Cheney, hoping to dilute Guantanamo representation and impugn the reputations and careers of the volunteer lawyers, launched a campaign.  Initially they attacked the right of  the detainees to be represented at all.  This was met with a massive denouncement by Press, other media, Civil rights organizations ,and rightly so, as being a threat to the Constitution and particularly the Sixth Amendment right to counsel.

A second attack on the Gitmo lawyers was made in the Wall Street Journal of March 16.  This has been totally ignored in the media and by civil and human rights groups. This latter revelation about the violations, by these lawyers, of the Judge’s  protective orders and was revealed via litigation and the Freedom of Information Act.  These pro bono lawyers serving clients assigned to them at Gitmo used privileged attorney client mail to send banned materials.  They carried in news report of US  failures in Afghanistan and Iraq . One lawyer drew a map of the prison.  Another delivered lists to his client of all the suspects held there. They placed on the internet a facsimile of the badges worn by the Guards. Some lawyers “provided news outlets with ‘interviews’ of their clients using questions provided in advance by the news organizations.”  When a partner at one of  the large Wall Street law firms sent in multiple copies of an Amnesty International brochure, which her client was to distribute to other prisoners, she was relieved from her representation and barred by the Military Commander from visiting her client.

This case is significant to interpret not because of the right wing line to punish  these lawyers and manipulate their corporate clients to stop patronizing such “wayward” firms. Instead it is significant  because, Lynne Stewart, a left wing progressive lawyer  who had dedicated her thirty year career to defending the poor, the despised, the political prisoner and those ensnared by reason of race, gender, ethnicity, religion , who was dealt with by the same Department of Justice, in such a draconian fashion, confirms our deepest suspicions that she was targeted for prosecution and punishment because of who she is and who she represented so ably and not because of any misdeed.

Let me be very clear, I am not saying that the Gitmo lawyers acted in any “criminal” manner. The great tradition of the defense bar is to be able to make crucial decisions for and with the client without interference by the adversary Government.

I believe that they were acting as zealous attorneys trying to establish rapport and trust with their clients. That said, the moment the Department of Defense and the Department of Justice tried to remove Julia Tarver Mason from her client, the playing field tilted.  Ms Tarver Mason was not led out of her home in handcuffs to the full glare of publicity.  There was no press conference.  The Attorney General did not go on the David Letterman show to gloat about the latest strike in the War on Terror, the purge of the Gitmo lawyer…NO.

Instead an “armada” of corporate lawyers went to Court against the Government. They, in the terms of the litigation trade,  papered the US  District Courthouse in Washington D.C.  They brought to bear the full force of their Money and Power– derived from the corporate world–and in 2006 “settled” the case with the government, restoring their clients to Guantanamo without any punishment at all, not to say any Indictment.  Lynne Stewart, without corporate connections and coming from a working class background, was tried and convicted for  issuing, on behalf of her client, a public press release to Reuters.  There was no injury, no harm, no attacks, no deaths. 

Yet that same Department of Justice that dealt so favorably and capitulated to the Gitmo corporate lawyers, wants to sentence  Lynne Stewart to thirty (30) YEARS in prison.  It is the equivalent of asking for a death sentence since she is 70 years old.

This vast disparity in treatment between Lynne and the Gitmo lawyers reveals the deep contradictions of the system —those who derive power from rich and potent corporations, those whose day to day work maintains and increases that power–are treated differently.  Is it because the Corporate Power is intertwined with Government Power???

Lynne Stewart deserves Justice…  equal justice under law.  Her present sentence of 28 months incarceration (she is in Federal Prison) should at least be maintained, if not made equal to the punishment that was meted out to the Gitmo lawyers.  The thirty year sentence, assiduously pursued by DOJ under both Bush and Obama, is an obscenity and an affront to fundamental fairness.  They wanted to make her career and dedication to individual clients, a warning, to the defense bar that the Government can arrest any lawyer on any pretext.  The sharp contrasts between  the cases of Lynne and the Gitmo lawyers just confirm that she is getting a raw deal–one that should be protested actively, visibly and with the full force of our  righteous resistance.

Lynne Stewart will be re-sentenced sometime in July, in NYC.

Ralph Poynter is the Life partner of Lynne Stewart.  He is presently dedicated 24/7 to her defense, as well as other causes.

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