Sheik’s Lawyer Fights Guilt by Association

On Monday, Courtroom 110 of the old federal courthouse in Manhattan will come alive as the closely watched criminal trial of Lynne Stewart opens. Stewart, a lawyer, stands accused of conspiring to aid terrorism while representing Sheik Omar Abdel Rahman, the Muslim cleric serving a 65-year sentence for plotting to blow up New York City landmarks in the 1990s. If convicted, Stewart, like her client, may well spend the rest of her life in prison.

Stewart is part of a vanishing breed of lawyers who zealously defend controversial and unpopular figures. Her statements over the years clearly demonstrate her political bent and ideological motivation. In 1995, well before the events that led to her indictment, Stewart was quoted as saying, “I don’t believe in anarchistic violence but in directed violence.” She sees the U.S. as a corrupt oppressor whose actions abroad caused Sept. 11 attacks.

The charges against Stewart, however, are far less clear than her beliefs. After his incarceration, the government limited Rahman’s ability to communicate with his followers from prison, for fear that he would still seek to influence or direct terrorist acts. The government now alleges that during prison visits, Stewart distracted guards so that an interpreter (Stewart does not speak Arabic) could pass messages from Rahman’s followers to him and take messages back to them. Stewart is also charged with releasing a media statement saying the sheik “is withdrawing his support” for a cease-fire that Rahman’s followers had with the Egyptian government -- a statement the U.S. government believes could have led to renewed violence in that country.

Stewart has strenuously asserted her innocence, and a jury will now decide. But there is growing concern about whether they’ll be able to decide fairly.

In a recent court proceeding, the government revealed a clever but bare-knuckled trial strategy. To bolster their conspiracy theory, the prosecutors successfully moved to introduce a videotape of a September 2000 Al Jazeera broadcast in which Osama bin Laden pledged jihad to free Rahman from prison by any means necessary. But this is pure guilt-by-association; the prosecution clearly hopes that tying the case to Bin Laden will stir the emotions of the jury.

Evidence of other terrorist acts also will be admitted, purportedly to show what Stewart intended when she allegedly conspired to pass messages for Rahman -- even though there is no allegation that Stewart was personally connected with any of those other acts. It’s blatant fear-mongering.

Last week, the prosecutors sought contextual wrapping for this “evidence” by subpoenaing four journalists to recount statements Stewart gave them. But the statements have nothing to do with her activities, or with anything she is alleged to have done; they are merely discussions of her unconventional worldview, one she has held since her days as a children’s librarian in Harlem.

The dots here are all too easy to connect. Bin Laden is the man most reviled by Americans. A year before the 9/11 attacks, he made threats aimed at freeing a man whom Stewart aggressively represented, espousing extreme opinions of her own. Though the events of 9/11 will not come before this jury, the courthouse is a short walk from ground zero. And just in case the point is lost, the jury will hear evidence about other attacks that caused death and destruction, even though the government is not alleging that Stewart ever met Bin Laden or that she has been involved in any act of terrorism. In this setting, can we really expect that the jury will be able to render a fair and impartial verdict, free of passion or prejudice?

In a symbolic sense, we don’t have to look far for the answer. Stewart’s case will be tried in the same courtroom where Julius and Ethel Rosenberg were convicted and sentenced to death 53 years ago. While protests of the Rosenbergs’ complete innocence continue to evaporate, there are significant parallels between their prosecution and Stewart’s. The government never actually proved that the Rosenbergs passed the secret of the atom bomb to the Soviets. But the prosecution’s case was bolstered by the hysteria caused by the “Communist menace,” just as certainly as the government’s case against Stewart is bolstered by fear of terrorism.

Like Stewart, the Rosenbergs held opinions that were unconventional and unacceptable in their day. Today, many claim that they were convicted and punished for those beliefs -- for their desire, misguided or not, to change this country and the world -- rather than for what they did or did not do.

Few now argue that the Rosenbergs received a fair trial or a fair sentence. But their memory hangs heavy as Stewart prepares to fight for her freedom -- and tries to prevent history from repeating -- in Courtroom 110.

Gerald Shargel, a criminal defense attorney in New York, teaches at Brooklyn Law School.