I want to write in defense of Lynne Stewart, but I don’t have much to work with. She plainly broke the law. Inexplicably, she did so even though she knew that her conversations might be recorded. Her indifference to lawyerly craft—not to mention her indifference to criminal statutes—has made it harder to fight against the tape recording of attorney client conversations and has amplified the chilling effects that the taping has on the defense of accused terrorists. For those of us who believe that criminal defense attorneys are sometimes targeted unfairly by prosecutors, Stewart’s status as the test case deprives us of the high moral ground, makes her unusual case appear to be the paradigm case, and detracts public attention from the more urgent issues. Stewart betrayed the criminal defense bar itself.
What are the chilling effects of taping those conversations? In theory, taping should not affect some routine conversations between defense lawyers and clients: discussions about how the client is faring in prison, or about the procedural status of the case, or about new Congressional action on habeas standards. Even if the lawyers know that they are being taped, those conversations aren't likely to be turned over to prosecutors, and aren't the stuff of which prosecutions are made.
But suppose that the conversations often go further. Suppose the defense lawyer says, “I think this argument is a loser but it’s the best we’ve got.” Or the lawyer blows off some steam by saying, “Judge Doe was a no-good such-and-such who made up his mind before hearing the evidence.” Or says, “on retrial, we’re going to need to find some testimony establishing that ….” Depending on the facts, each of those comments could be perfectly ethical, could be interpreted as entering into the ethical gray zone, or could be evidence of ethical breaches or perhaps even crimes.
Criminal defense attorneys need some breathing room if they are to vigorously defend the accused. Some of the ethics rules aren't black and white. A lot of criminal law falls within prosecutorial discretion. Despite those uncertainties, lawyers are supposed to fight for their clients zealously within the bounds of law. Tape recording defense lawyers and then prosecuting them will necessarily make some of them pull back from legitimate conversations.
A DOJ attorney might say that the kind of conversation Stewart had deserves all the chilling effect that the law affords. True. If criminal defense lawyers are using the privilege to shield plainly illegal conduct, then the privilege is being abused. It's why I can't generate sympathy for Stewart.
But the chilling effects will reach legitimate defense functions. And because the tapes in Stewart's case showed such awful behavior, it will be harder to criticize the DOJ for taping and prosecuting defense lawyers. Stewart, not Ashcroft's DOJ, is to blame for that. Stewart poisoned the well for other defense lawyers.
If we wanted to finish on an upbeat note, we’d point to some of the lawyers of impeccable integrity who continue to defend those accused of terrorism: Michael Tigar, Jim Brosnahan, loads of JAG lawyers, and all the lawyers who pushed the Hamdi, Padilla, and Rasul cases to trial. Here's hoping that Stewart's conviction will have little impact on their good work.