The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend

Abstract:     
At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures ("SAMs"), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against her. This Article argues that post-9/11 administrative mechanisms such as the SAMs represent a classic case of governmental overreaching, one that is in line with a long history of compromising civil liberties and limiting access to the courts during periods of war and national anxiety. It analyzes the effects of such mechanisms upon criminal defendants and those who represent them, and uses Lynne Stewart's conviction as a lens through which to examine the history that brought us to this point as well as serving as a concrete example of what can, and does, happen when rules regulating the bounds of proper legal advocacy are violated. It concludes by demonstrating that although effective defense strategies may temper the impact of certain aspects of the SAMs, the regulations' very existence has the potential to "chill" the attorney-client relationship and thereby threaten the Sixth Amendment - a reality the courts have yet to acknowledge.

Keywords: attorney-client relationship, criminal defense

Accepted Paper Series