August 8, 2013, 6:12 PM
Judge Hints Against Early Release for Lynne Stewart
By Pervaiz ShallwaniA Manhattan federal judge hinted Thursday that he has no legal jurisdiction to grant jailed civil rights attorney Lynne Stewart early release because she is dying of breast cancer.
Ms. Stewart, 73, was convicted of helping an Egyptian sheik relay jailhouse messages to his followers. Her attorney filed a petition last week asking the judge to end her 20-year prison sentence and release her into the care of her family under “compassionate release.”During Wednesday’s scheduled hearing on the petition U.S District Judge John Koeltl said he would be violating federal law if he considered her petition.
“If I grant your motion, I would be violating the plain words of the statute,” Judge Koetl told Ms. Stewart’s attorney.
Ms. Stewart was not at the hearing. She is currently being housed at the Federal Medical Center Carswell in Fort Worth, Texas.
Under law, it would be up to the bureau of prisons to ask the judge to release Ms. Stewart. Roughly a month ago, the prison warden denied Ms. Stewart’s request, stating that while her illness is “very serious” she is not suffering from a condition that was terminal within 18 months, according to court documents. Ms. Stewart filed a new petition this week after doctors revised her prognosis to less than 18 months, her attorney said.
The judge spent roughly an hour hearing arguments from both sides. He did not give a time frame for when he would make a decision.
Ms. Stewart is suffering from stage IV breast cancer and now has less than 18 months to live, her attorneys said.Citing federal law, prosecutors argued that Ms. Stewart does not have jurisdiction to file the motion and the judge has no authority to hear it.
“We don’t believe she has a right to make this motion” Assistant U.S. Attorney Andrew Dember said. “Nobody is disputing Ms. Stewart’s wellness.”
Attorney Jill Shellow argued that there was no rational basis for the bureau of prisons to deny her client’s release. She argued the judge has broad discretion under Eighth Amendment of the United States Constitution.
“There is no question Ms. Stewart satisfies the requirements [for compassionate release],” Ms. Shellow said, adding that the court has the power “to exercise mercy and reduce the sentence.”
Thursday, August 8, 2013
"I Do Not Want to Die in Prison": Cancer-Stricken Lawyer Lynne Stewart Seeks Compassionate Release
Lawyers for imprisoned attorney Lynne Stewart head to federal court today to seek her release from prison. Now 73 years old, Stewart is dying from cancer in a Texas prison. Last month, Stewart’s treating physician in prison estimated her life expectancy is approximately 18 months. This comes after the Federal Bureau of Prisons denied Stewart’s request for early release — a denial her lawyers are appealing and hope to address today in a hearing before her original sentencing judge, Judge John Koeltl. In 2010, Stewart was sentenced to 10 years in prison for passing messages from her client, Sheikh Omar Abdel Rahman, to his followers in Egypt. In a letter to Judge Koeltl, Stewart wrote: "I do not intend to go 'gently into that good night' as Dylan Thomas wrote. There is much to be done in this world. I do know that I do not want to die here in prison — a strange and loveless place. I want to be where all is familiar — in a word, home. ... I have no grandiose plans — just good food, conversation, music. That is what I look forward to. And of course, my beloved husband Ralph — my hero and help, my heart, through all the last 50 years. I need him and his strength and love now to be close to me as I get ready for the nearing moments of transition and then rest. If you indeed represent the merciful hand of the law, as against, in this case, a heartless bureaucracy, do not punish me further. Grant me release and allow me to die in dignity." We speak to her husband Ralph Poynter, her daughter Zenobia Brown, and her attorney Jill Shellow.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We turn to the case of the longtime civil rights attorney who is fighting for her life—behind bars. Lynne Stewart has long been known as an attorney who championed unpopular clients who she felt should be fairly represented in court. This includes Sheikh Omar Abdel Rahman, often referred to as the blind sheikh, who was convicted of conspiring to blow up the U.N. and other landmarks in New York City. In 2010, Lynne Stewart was sentenced to 10 years in prison for passing messages from the sheikh to his followers.Now 73 years old, she is dying from cancer in a Texas prison. Last month, Lynne Stewart’s treating physician in the prison estimated her life expectancy is approximately 18 months. This came after the Federal Bureau of Prisons denied Stewart’s request for early release, a denial her lawyers are appealing and hope to address today in a hearing before her original sentencing judge, Judge John Koeltl.
Before we’re joined by one of her lawyers, along with Lynne Stewart’s husband and daughter, who is a doctor, I want to read from a letter who wrote to Judge—a letter that Lynne Stewart wrote to the judge that Democracy Now! obtained a copy of. Stewart wrote, in part, quote, "I do not intend to go 'gently into that good night' as Dylan Thomas wrote. There is much to be done in this world. I do know that I do not want to die here in prison—a strange and loveless place. I want to be where all is familiar—in a word, home. ... I have no grandiose plans—just good food, conversation, music. That is what I look forward to. And of course, my beloved husband Ralph—my hero and help, my heart, through all the last 50 years. I need him and his strength and love now to be close to me as I get ready for the nearing moments of transition and then rest. If you indeed represent the merciful hand of the law, as against, in this case, a heartless bureaucracy, do not punish me further. Grant me release and allow me to die in dignity." That was what Lynne Stewart wrote to the judge who will hear arguments today in federal court for her compassionate release.
This is Lynne Stewart in 2009 when she spoke to Democracy Now! in her last broadcast interview before beginning her prison sentence. Lynne Stewart explained the background of the case and why she had been charged.
LYNNE STEWART: I represented Sheikh Omar at trial—that was in 1995—along with Ramsey Clark and Abdeen Jabara. I was lead trial counsel. He was convicted in September of ’95, sentenced to a life prison plus a hundred years, or some sort—one of the usual outlandish sentences. We continued, all three of us, to visit him while he was in jail—he was a political client; that means that he is targeted by the government—and because it is so important to prisoners to be able to have access to their lawyers.
Sometime in 1998, I think maybe it was, they imposed severe restrictions on him. That is, his ability to communicate with the outside world, to have interviews, to be able to even call his family, was limited by something called special administrative measures. The lawyers were asked to sign on for these special administrative measures and warned that if these measures were not adhered to, they could indeed lose contact with their client—in other words, be removed from his case.
In 2000, I visited the sheikh, and he asked me to make a press release. This press release had to do with the current status of an organization that at that point was basically defunct, the Gama’a al-Islamiyya. And I agreed to do that. In May of—maybe it was later than that. Sometime in 2000, I made the press release.
Interestingly enough, we found out later that the Clinton administration, under Janet Reno, had the option to prosecute me, and they declined to do so, based on the notion that without lawyers like me or the late Bill Kunstler or many that I could name, the cause of justice is not well served. They need the gadflies.
So, at any rate, they made me sign onto the agreement again not to do this. They did not stop me from representing him. I continued to represent him.
And it was only after 9/11, in April of 2002, that John Ashcroft came to New York, announced the indictment of me, my paralegal and the interpreter for the case, on grounds of materially aiding a terrorist organization. One of the footnotes to the case, of course, is that Ashcroft also appeared on nationwide television with Letterman that night ballyhooing the great work of Bush’s Justice Department in indicting.AMY GOODMAN: That was Lynne Stewart speaking in 2009 on Democracy Now! in her last broadcast interview before beginning her prison sentence. She has served 46 months so far of her 10-year sentence. That’s just shy of four years.
For more, we are joined by Jill Shellow, one of the lead attorneys for Stewart who will be in court today. We’re also joined by Lynne’s husband, Ralph Poynter, and her daughter, Dr. Zenobia Brown, who is a hospice and palliative care specialist with a master’s in public health. We asked prison officials if Lynne herself could join us by telephone from the Fort Carswell Federal Prison, but they did not respond to our requests. Our producer, Renée Feltz, visited her a few weeks ago, when we did our report on her from the prison.We welcome all of you to Democracy Now! Let’s begin—Ralph Poynter, your wife, Lynne, in prison, you visited her last week.
RALPH POYNTER: Right.
AMY GOODMAN: Talk about the significance of today’s hearing.
RALPH POYNTER: Well, it is possible that Lynne would be released by the judge. It is possible that he will reserve decision. There are many possibilities. It is possible that he would agree with the prosecution. We do not know.We are showing support by massing people in front of the courtroom, in the courtroom. The 20,000 signatures that came in to support Lynne’s compassionate release, a number—many people around the world, in Brazil—you name the country, we have a letter from that particular area. And so, there are many people who understand the injustice that’s taking place here, and many people have signed on in support of Lynne in her struggle for liberation.
AMY GOODMAN: I want to read a letter from the Federal Bureau of Prisons Assistant Director Kathleen Kenney, dated June 24th, in which she denied Lynne Stewart’s request for compassionate release. She wrote, quote, "To date, she has been responding well to treatment. Ms. Stewart is ambulatory and independent in her Activities of Daily Living. While her illness is very serious, she is not suffering from a condition that is terminal within 18 months. Accordingly, Ms. Stewart does not present circumstances considered to be extraordinary and compelling to merit RIS at this time," unquote.
Now I want to compare that to the prognosis given by Lynne Stewart’s treating physician before she went into prison. Dr. Grossbard wrote in July 2012, about a year ago, quote, "The fact that Ms. Stewart’s disease has progressed on therapy along with the decline in her overall performance status and medical condition suggests [that] her survival will be less than 12 months at this time."If—Jill Shellow, you’re Lynne Stewart’s attorney. She was denied compassionate release. Is this your last chance today with Judge Koeltl, the original judge in her case?
JILL SHELLOW: I hope not. I think it’s going to be part of a process. Lynne has—as a letter that you started—that you started to read from Kathy Kenney at the Bureau of Prisons says, if your circumstances change, you may seek reconsideration. Lynne has sought reconsideration of that denial. I believe that Judge Koeltl will hear us today. And while he could rule today, I believe it’s also possible that we will—that we will appear before him again at least once before this matter is resolved.
AMY GOODMAN: I also want to get response to a comment made by Andrew McCarthy, a former federal prosecutor who was Lynne Stewart’s adversary during the 1995 trial of Mr. Abdel Rahman. He said he had no problem with the idea that prisoners like Abdel Rahman, who are serving life sentences for heinous offenses, should have to die in prison. But regarding Lynne Stewart’s case, he said, quote, "As a private citizen who was very fond of Lynne when we dealt with each other, I prefer to keep my thoughts to myself and my prayers for Lynne and her family." I want to turn to Lynne’s daughter, to Dr. Zenobia Brown. What will happen if Lynne were to be released? How will she be cared for?
DR. ZENOBIA BROWN: She would probably continue with the same treatment she’s been getting in prison. I think the piece that most people are not sort of cognizant of is that at this stage of cancer there is no cure. So, basically, it is a battle for time. And at this point, she is losing that battle, and that is clear. That is why it was so shocking when the BOP denied her compassionate release based on really what was not the case. There were 200 pages of medical records that went into—that went up to Washington and that would appear that none of them were reviewed, that no specialist in palliative care or no one who has any prognostic background looked at a single document.AMY GOODMAN: You are a special in palliative—a specialist in palliative care?
DR. ZENOBIA BROWN: Right, and people facing life-limiting illness. So, just sort of looking through it, they literally made this decision based on a single physician’s comment that the patient was responding well. No doctor in this country is really trained to deal out justice. And basically, the entire case of whether my mother would be released or not was on a two-sentence letter from her treating oncologist. So, just the—sort of the injustice of that and the fact that there really was no sort of objective party looking at this data is—it really is mind-boggling.
AMY GOODMAN: I want to read part of a 2012 report by Human Rights Watch on compassionate release in U.S. federal prisons. Quote, "Although we do not know how many prisoners have asked the [Bureau of Prisons, or] BOP to make motions on their behalf—because the BOP does not keep such records—we do know the BOP rarely does so. The federal prison system houses over 218,000 prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January 1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners who received compassionate release has been less than two dozen. Compassionate release is conspicuous for its absence." Dr. Zenobia Brown, could you respond to that? And, I mean, it’s quite remarkable that you are a hospice physician.
DR. ZENOBIA BROWN: The irony is shocking. Really, I mean, it almost is a no-brainer. The BOP has no interest in releasing prisoners. I mean, that’s not their business. Their business is sort of heads in the beds. So to put them in charge of deciding whether or not these cases even get presented is—I mean, there’s no one who would sort of support that that’s the way this should be done. And also, this sort of arbitrary increase from 12 months to 18 months, there’s no medical foundation for. There’s no sort of—research is not done on a 12- to 18-month basis, so that’s also completely arbitrary. And in mom’s case, basically, the physicians, who are visiting with her in Carswell every day, see her losing 20 pounds, supported her compassionate release, only to have it denied at—AMY GOODMAN: The prison warden supported compassionate release.
DR. ZENOBIA BROWN: Yeah. So, to sort of then have it denied at this higher level is just—it’s heinous, and it is cruel and unusual.AMY GOODMAN: How would you care for her if she were released?
DR. ZENOBIA BROWN: It’s doing all of those thing—I mean, I think anyone who has battled cancer knows that just being treated for cancer outside of prison is cruel and unusual. It is very difficult. It is trying physically. It is trying emotionally. There are some basic things, like, for example, when she’s in prison and has sort of life-threatening low blood counts, sort of nothing is done. She has no place to go. There’s no recourse. There’s no one to call. There’s no one to treat her. So she could, as she has seen her cell mates die horrible deaths with no medical care—so the difference is vast, meaning, if she got a fever, we would take her to the emergency room, we would take her to a doctor. If she has pain, we will make sure she’s not—I mean, she has metastatic disease to the bone—make sure that she’s not having pain in the middle of the night; make sure that—she has, you know, pleural effusions, which is fluid on her lungs—make sure that she can breathe. You know, I mean, it’s so basic. I mean, it’s just humanitarian. We’re not talking about, you know, sort of wild and outrageous treatments. It’s just basic, compassionate care.
AMY GOODMAN: Ralph, if you could talk about your visits to her in prison and the comment that she’s living a fine, independent life within the walls of the prison.
RALPH POYNTER: That is—Lynne calls it a misstatement. I call it a total lie, because Lynne does nothing for herself. Everything is done for her. She sits in a bed. In a prison, you have to make your own bed. Lynne does not have to. She does not take long walks. The prison brings her food. Everything is done for her as she sits. And so, for them to say that she can take care of herself is just outrageous. And obviously she does not. She looks to have a walker. To walk around the visiting room is a chore. And, of course, in prison, they don’t like you to be close, and so we don’t walk, because she holds on to walk. And it’s—for them to make a statement like that, that she’s improving, and when we all know that her lungs are being clogged, this is dangerous, a dangerous situation, and the prison wants her dead. I don’t call them "prisons" anymore; I call them "death camps."
AMY GOODMAN: Jill Shellow, what will you be arguing in court?
JILL SHELLOW: That the Bureau of Prisons failure to make the motion, failure to come to court and ask that her sentence be reduced is, in and of itself, a constitutional violation. It gives Judge Koeltl the authority, both that combined with—with the great habeas writ. He has the power to reduce her sentence or vacate her sentence. There are exceptional and compelling circumstances. That’s beyond doubt. The government—the United States attorney’s office doesn’t dispute that she’s dying. It doesn’t dispute that at this point her doctor says that she has less than 18 months to live. It doesn’t dispute that the warden and the doctors who have been caring for her at Carswell believe that she should be released. There is no excuse. None. And that’s the argument.
AMY GOODMAN: I remember, you know, covering this case all of the years that Lynne was going through this in court, and that moment when she came out on the courthouse steps, this very controversial moment. She had been sentenced to two-and-a-half years in prison. She looks out. Her grandchildren are weeping there. And she is also—I haven’t seen her in prison, but a very funny person, right? She uses humor to comfort people. And seeing people grieving like that, as she was sentenced first to two-and-a-half years, she said something like, "Don’t worry. I can do it standing on my head."RALPH POYNTER: That is a misstatement. If you go—
AMY GOODMAN: Tell me what she said.
RALPH POYNTER: What she had said, "As many of my clients have said to me when they received a sentence that was less than possible—possibly expected, 'I can do that standing on my head.'" Now that’s a big difference than saying, "I can do that standing on my head." And if you go back and review the tapes, it is very clear what she said. And she began by thanking the judge. And all of this has been skipped by the media, who has lied about what Lynne said.
AMY GOODMAN: So, why this is relevant at all is the fact that Lynne ended up having—being sentenced to 10 years. Can you explain what happened, how she was sentenced to two-and-a-half years, and then 10, Jill Shellow?
JILL SHELLOW: I wish I—I wish I had a good explanation. I can tell you technically how it happened. I can tell you that when Lynne appealed her conviction, the underlying conviction for the conduct, the government cross-appealed her sentence. The conviction was affirmed, and the sentence was vacated, with directions to Judge Koeltl, in no uncertain terms, that the court of appeals thought the 28 months was too lenient. Judge Koeltl then, following what he believed, I’m sure, to be the instructions of the court of appeals, sentenced her to 10 years. The only thing that changed between his first sentence and his second sentence was the statement that Ralph described and the court of appeals opinion. Nothing other than that changed. And that’s one of the issues that’s presently pending in the Supreme Court. Lynne’s—we filed a cert petition on Lynne’s behalf. It was filed earlier this year. It will be conferenced at the end of September. The solicitor general has opposed that, which is surprising only in that the solicitor general does not file very many oppositions. And that will be a question that hopefully the Supreme Court will address.AMY GOODMAN: What time today is the court hearing? I know that it’s going to be packed.
JILL SHELLOW: Two-thirty.AMY GOODMAN: And it’s at the?
JILL SHELLOW: Foley Square, 500 Pearl Street.
AMY GOODMAN: Foley Square, and that’s at 2:30 today. Democracy Now! will be covering it, and we’ll report tomorrow whatever comes of this. Whether a decision is made or whatever happens, we’ll report on it tomorrow. I want to thank you all for being with us, attorney Jill Shellow; Ralph Poynter, Lynne’s husband, just returned from yet another trip to Lynne Stewart in jail in Texas; and her daughter, Dr. Zenobia Brown, who’s a hospice and palliative care specialist with a master’s in public health. This is Democracy Now!, democracynow.org, The War and Peace Report. We’ll be back in a minute.
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