By Basil Katz
NEW YORK (Reuters) - Outspoken New York criminal defense attorney Lynne Stewart, now disbarred and incarcerated, lost a bid to reverse her 10-year prison sentence for helping a terrorism suspect smuggle messages to his followers from prison.
In a written opinion on Thursday, three judges at the 2nd U.S. Circuit Court of Appeals in New York expressed little sympathy for 72-year-old Stewart, who has struggled with breast cancer and whose supporters had argued the prison term amounted to a death sentence.
Stewart "has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar," the 51-page opinion said.
Stewart, a long time human rights lawyer, was convicted by a Manhattan federal jury in July 2005 of helping her client, a blind Egyptian cleric who was a terrorism suspect, smuggle messages out of prison, a violation of the Special Administrative Measures (SAMs) governing his confinement. In 2006, she was sentenced to 28 months in prison.
In 2009, after a government appeal, a 2nd circuit panel sent the case back to U.S. District Judge John Koeltl for resentencing on the grounds that the original sentence was insufficient.
The same judges - John Walker, Guido Calabresi and Robert Sack - also issued Thursday's opinion, and heard oral arguments in the case in February.
Herald Price Fahringer, an attorney for Stewart, said he would ask for the case to be heard again before the full appeals court and that the issues it presents may warrant review by the Supreme Court.
The opinion is a "terrible deterrent for people speaking out in public," Fahringer said.
Fahringer had argued that comments Stewart made after her initial sentence was imposed should not have been used to increase her prison term, and that they should not have been taken as a clear-cut denial of remorse for her actions.
"Cobbling together scraps of First Amendment doctrine and dicta for support, she (Stewart) contends that she was punished for what she said, and that such punishment runs afoul of the First Amendment," said the opinion, written by Judge Sack.
After the October 2006 sentencing, Stewart, standing on the courthouse steps, said that she could serve the 28-month sentence "standing on my head." The government also cited two other comments she made in interviews after the sentencing.
But the appellate judges praised Judge Koeltl's reasoning in quadrupling Stewart's sentence.
By taking the statements into account, Koeltl was "determining the characteristics of the defendant, which were legally relevant to a determination of the appropriate sentence to impose on Stewart, through the contents of statements she voluntarily and publicly made."
The opinion brushed aside any notion that her sentence would have a "chilling effect" on free speech, and said the government can, in some circumstances, use what people say in public against them.
Nevertheless, the opinion said it was important to "again emphasize" that courts cannot just use any protected speech in fashioning a prison sentence. The speech must, for example, be related to "specific criminal wrongdoing."
The appeals court also said Koeltl had not punished Stewart for her political beliefs.
Stewart was convicted for helping her client, Sheikh Omar Abdel-Rahman, contact the Islamic Group in Egypt.
The Islamic Group is listed by the U.S. government as a terrorist organization. Abdel-Rahman was convicted in 1995 of conspiring to attack the United Nations and other New York City landmarks, following the 1993 World Trade Center truck bombing.
Stewart is serving her sentence at the Federal Medical Center prison in Fort Worth, Texas.
(Editing by Barbara Goldberg and Dan Grebler)