August 8, 2013, 6:12 PM
http://blogs.wsj.com/metropolis/2013/08/08/judge-hints-against-early-release-for-lynne-stewart/tab/print/
Judge Hints Against Early Release for Lynne Stewart
By Pervaiz Shallwani
A 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
http://www.democracynow.org/2013/8/8/i_do_not_want_to_die
http://www.democracynow.org/2013/8/8/i_do_not_want_to_die
"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.
Transcript
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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