Scary: The Lynne Steward case

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Just out of curiosity... Since when does defending a criminal give lawyers the right to break the law on their behalf and not be punished? Ergo -- I commit felony, but it's okay, because I am defending somebody, prosecuted for the same crime, who told me it's okay. I don't get it.

 

What I am sure about is that Mrs. Steward has acted inproper, very much imprudent if you ask me, and yes, she'd better had called a court. Probably she got to close to the case emotionally and had better put down her mandate, but she didn't commit a crime.

The case made against her strikes me as constructed and dubious, and the punishment she faces in comparison to what she did strikes me as excessive.

I find it very questionable to regulate the way you use constitutional rights in such a limiting fashion just by means of an executive order, or a SAM for instance. IMO for that it would need a formal law.

The whole signing of a SAM thingie is sort of weird, from a legal point of view. It's like an attempt to excape into civil law: You make a contract (a tool criminal law doesn't know) and then when you don't oblige, you have to pay a hefty penalty - and here, they charge you with 'defrauding the gvt'.

Just that there can't be an excape into the realm and methods of civil law here - this is criminal law, which only has the clear norms the legislation has set up, and that solely has to rely on them.

The SAM allow to criminalise behavior pretty arbitrary just by forcing or requiring people into signing them - without even asking the legislation on this. To base the case on the violation of SAM is a backdoor-approach.

Technically they could make you sign a SAM not to eat strawberry jam or not to leave your house, and if you disobey, charge you with defrauding the gvt because you violated the SAM.

So it very much does matter if the limitations in he SAMs are inconstitutional, because</font>

1. When the SAMs are unconstitutional they are null and void
2. and when they are null and void no one has to oblige them
3. but then they cannot be an argument to build a case of defrauding the gvt on.

I think the question if the SAM are constitutional is very much important here.

 

Agreed, but you don't have to sign it. And when you sign without intention of keeping, it's just defrauding the government. Thirty years, however, is quite extreme, as I've said, but if she did put lives in danger knowingly, perhaps this isn't all so high.

Agreed. It sort of works like a government order, so if it's unconstitutional for the government to demand this of a citizen on some governance-related grounds it can't be ordered, so it can't be an obligation of public law, so then it works like civil law. If it works like civil law, prison doesn't apply, nor even fine for that matter, because civil law knows only restitution and compensation. If the SAM orders were unconstitutional, she's only responsible for monetary losses, if at all.

However, she could have made the matter loud and demand no SAM to be presented to her and so on and so forth. She surely had some means of challenging it rather than signing with no intention of keeping or at least arriving at a later term at the decision to violate it.

But I would really like to know if she did or not knowingly pass a message that could endanger the lives of innocent people.

Another thing is, where exactly is the penalty specified - I mean, the length of the prison term? Where is the exact offence named? Nullum crimen sine lege. Nulla poena sine lege. Crimes and kinds of punishment must be named in a parliament bill. The use of executive orders in determining the obligation to be undertaken under the penalty specified is already problematic. Defining the scope of duty that breeds an obligation and therefore accountability is a normal thing for crimes of neglect. But 30 years on an executive order violation is gross at any rate. Looks barbaric. Again, if she did put innocent lives in danger by doing what she did, then she deserves a hefty sentence. Depending on the exact circumstances, she could even be tried on treason charges. There's no right whatsoever to provide extra-judicial assistance to the client, so when a lawyer starts delivering messages for a terrorist suspect to and from his organisation, he has himself to blame for the consequences. Not like a long prison term is justifiable without her putting in danger a human life.

[ March 09, 2005, 00:13: Message edited by: chevalier ]

 

Sure, but it can still be just the tort of culpa in contrahendo, which is fraudulent attempt at a civil contract, which only makes one responsible for associated losses.

The public exception safety sort of gives me creeps, but if I were a defence lawyer, I would have a huge trouble listening to "acquitted!" if the guy had confessed to murder or rape to me. I would defend zealously all his formal rights to honest trial and proper defence and all the presumptions and allegations working in his favour, but I would never lie (illegal for lawyers in my country, too), attempt to hide or destroy proof of guilt (also illegal for lawyers in this country) etc. I would ideally have him judged guilty but with the whole lot of mitigating circumstances that could come to my head. I wouldn't agree to help a guilty guy escape conviction - to get a lower sentence, yes, but not to escape conviction in crimes like murder or rape where he needs to be separated from the society. Probably the same for drunk driving.

 

Yeah, I know the SAM wasn't intended as a civil contract. Perhaps I wasn't clear enough on my thoughts. What I meant was that perhaps it should be regarded as a civil contract instead of an obligation of public law. As in, if it goes outside their competence, they can't make you undertake a public but only a civil obligation.

However, another way of looking at it would be as admitting her to top secret information. She couldn't be punished for revealing it if she hadn't known of the secrecy, and the SAM would then serve to prove she did know and acknowledge the secrecy of the information. Publishing a potentially life-threatening statement from her client accused of terrorism is something I believe such a procedure could cover. I just don't like any sort of "if I do this and that, you can put me to jail for N years" kind of documents.

Question is, if their jurisdiction covers that. Plus 5 isn't 30. I agree that fraud should be punishable and, actually, I wouldn't have anything against punishing private fraud with prison per se. That would teach them.

Currently, I'm pretty sure there's enough grounds for disbarment and I think someone who acts like she did shouldn't be allowed to practice as a lawyer, but I'm skeptical as to the 30 year term. I'm also skeptical towards the intentions of the government. It's quite clear they are trying to send a message to lawyers that they won't tolerate defending people the government doesn't like.

 

Oh, I do understand your point, I just think it's, excuse the pun, pointless

The problem I see with SAM is that they can be used to implement measures limiting guaranteed constitutional rights, even if they might have been refused by congress as legislation, by simply imposing them as a SAM. How convenient. They are a wide open door inviting for arbitrary use and abuse.

As an unconstitutional law has no obliging effect anyway, it doesn't matter wether she didn't intend to keep her promise anyway, or broke it later.

It's irrelevant to ponder wether it's just a broken promise or 'fraud', because when they were unconstitutional it was neither fraud nor a broken agreement - just some hot air.

You cannot argue any other way - when the SAM are unconstitutional it's just as if they'd never been signed - they have no effect for the future and no effect for the past. That's what null and void means.

When I put a gun at your head and illegaly coerce you into agreeing to something, I, too, can't later go and insist that you *did agree* and charge you with 'fraud' for not intending to keep the coerced promise you ... made ... had to make ...
That is meant to say, the legality of the SAM very much matters, and not to allege the U.S. gvt coerced Ms. Steward in any way.

A citizen mustn't face any legal sanctions based on an unconstituional law or other gvt rule.

As the SAM could well have never been a binding obligation for constitutional reasons, you simply can't blame someone outright for never wanting to act in accordance with the SAM without answering the question of their legality first.

You can only start to think about borken agreement or fraud after determining that.

 

Agreed. And what she did was fraudulent.

It does matter. If a law is unconstitutional, breaking is non-issue.

If the document had been legal, then yes.

Well, but why are we discussing just a fraudulently signed SAM if she's facing 30 years? The SAM thing can't make a quarter of this term.

 

Maybe I have a better example:

A woman wants a job and is required by her employer to sign a statement saying she doesn't want to have children as long as she's employed. She signs it, determined to have children soon.

In principle she's acting fraudulent.

Legally that is questionable. As the question for pregnancy wishes is an illegitimate question - the employer has no right to ask - and the employer has no right for a correct answer, too.

That means, in this case the woman is entitled to lie, because the consequences for not-signing, and instead saying: 'you're not allowed to ask me that', would be not getting a job - as a result of an illegitimate question, thus rewarding the employer even though *he* acted inproper in first place.

And that means she can't have acted fraudulent, because to allow her to lie is the only way not to reward illegal behavior here.

I guess you see the anylogy. In any case the legality of the underlying agreement is crucial.

 

I don't think the analogy is a accurate, I also disagree with BTA's statement. I think discriminating against a pregnant woman IS illegal. I believe there have been several civil suits in this area (the most famous being an actress who was fired when she got pregnant -- the courts sided with her). As such, the contract would be voided due to it's illegal nature and the woman could not be found guilty of fraud (the company would also open itself to a major lawsuit).

I do agree with the issue of legality of the SAM being a primary concern. However, the phrasing of the SAM itself should be examined closely. I haven't read it or even a copy of it, so I can only go by what is in the news (a dubious source at best). It appears to me the meat of the SAM is the requirement that Ms. Steward not further her clients political goals -- i.e., she was not allowed to pass ANY of her clients opinions or instructions to his followers (as this act would be passing on instructions to terrorists). This she clearly did.

I believe she may have done this intentionally to challenge the SAM and the law supporting such things. This is part of the legal system in America -- if you believe a law is wrong you can challenge it, but you must be willing to pay the price if you are wrong. Rosa Parks was still arrested, but her willingness to stand against a unfair law AND ACCEPT PUNISHMENT FOR VIOLATING THAT LAW changed the entire country.

The courts sided with Rosa Parks, but against Lynne Steward.

(edit: spelling and added a few words...)

 

@BTA - While I generally agree with most of what you are saying - namely that there is no doubt that Ms. Steward committed fraud and willfully violated the SAM. However the constitutionality of the SAM is of concern here. Look, if it is determined that the SAM is constitutional, then there's no problem here.

But if it turns out that the SAM is unconstitutional, then Ms. Steward would be let out of prison if she was convicted, and probably be reinstated by the Bar Association. Thus, the constitutionality is of concern seeing as how it is a means for Ms. Steward to completely exonerate herself.

I think the simple point that Ragusa is making is if a law or a contract is determined to be unconstitutional, then in the case of a law it ceases to be a law, and in the case of a contract it is no longer binding. As such, you can't be placed in prison for violating a non-law. If your only point is that she can be imprisoned as long as the SAMs are considered constitutional, then I agree.

Perhaps I have a better analogy (or maybe not). The 5th amendment of the constitution gives you the right to not make any statements under oath that would be self-incriminating. However, say you are part of a drug ring, but you're a relatively minor player, and who the law really wants to convict is the drug kingpin. In such a case, a judge can give the minor person in a drug ring immunity from prosecution. Under this circumstance, the person can no longer invoke his 5th amendment rights, because there is no way he can make a self-incriminating statement if he can't be charged with the crime.

The point I'm making is that you can't do time if you aren't breaking a law, and you can't go to prison (or remain there) if the law you broke ceases to be law.

 

First of all, the pregnancy thing was a bad analogy - I'm not saying we can draw a good comparison from that.

I completely understand your point (referring to the above quoted material). What I and Ragusa are saying is: If fraud is having no intention to abide by a signed contract, but that contract becomes void, then you can't commit fraud on said contract, because it ceases to be a contract when deemed void. Kind of like in my example that you can't invoke the 5th amendment if your testimony becomes non-prosecutable, because your statement would no longer be self-incriminating.

I'm trying to think of a parallel situation. Hmmm... How about this: In the state of Maryland it is assault to threaten someone with a deadly and/or dangerous weapon. (It is irrelevant if you actually harm said person. The sole incriminating factor here is whether or not the weapon caused the victim to be in fear of his/her life. As an aside, because it is the fear factor, you can be charged with assault even if you point a FAKE gun at someone - if the victim thought it was real, and was in fear of his/her life is all that matters.) So, if you attempt to coerce someone into performing some type of action (and let's assume for a moment that said action is legal) by pointing a gun at them, you can be convicted of assault. Also, let's say hypothetically, that at some future point, guns are no longer considered a "dangerous and/or deadly weapon". Such a ruling would cause someone who committed assault by pointing a gun at someone would be let out of prison. It doesn't change the fact that he coerced the person into doing something, but it is no longer assault, so he goes free.

What you are saying (and drawing upon the above analogy) is that say the coerced action wasn't legal. Say the person pointing the gun was trying to coerce a cashier behind a counter to give him all of the money in the register. You're saying that the person would still be guilty of robbery, even if guns were not considered deadly and/or dangerous weapons. The only difference would be now the charge is "robbery" as opposed to "armed robbery" with an assault charge to boot.

And you would be correct in that assumption. I am certainly not saying that having been absolved from guilt in one situation automatically absolves you from guilt in all relating circumstances. In the above example, you still stole money even if you are no longer considered armed. But in the case of Ms. Steward, the fraud committed was upon the SAM. If SAMs are unconstitutional, it is unlawful to force someone into signing an agreement based on said SAM. It's like the SAM never existed, and it is NOT fraud to have no intention to abide by a NON-contract.