How not to help yourself in testimony

Here's an example of how a defendant's decision to testify on the stand can backfire.  Lynne Stewart, a zealous criminal defense attorney, is being prosecuted for allegedly helping her client, the "Blind Shiekh" (responsible in part for the first World Trade Center bombing in 1993), communicate with his followers; the idea being that the communications exhorted his followers to engage in more violence.  This is a very touchy case, because on the one hand, defense lawyers shouldn't get a pass from prosecution if they are helping their clients engage in terrorism, but on the other hand, prosecuting defense attorneys can't help but have a chilling effect on the zealous advocacy that our criminal justice system assumes.

Anyway, on cross-examination, Stewart had the following things to say:

Under questioning in federal court, Lynne Stewart said violence was necessary to reverse an "entrenched ferocious type of capitalism" that breeds sexism and racism. She said civilians must not be targeted, but left unclear what kind of violence she meant.

"I'm talking about a popular revolution," Stewart said.  "I'm talking about institutions being changed and that will not be changed without violence."

* * *

When U.S. Attorney Andrew Dember pressed Stewart to explain what types of institutions she believed must be attacked, Stewart said the American Revolution was accomplished through violence and that the Civil War brought about an end to slavery in the U.S.

"We're not in those times yet," she said. "People will make the right decision about which to attack."

The former school teacher and librarian added, "The New York City Board of Education could be one to attack." The remark received chuckles around the courtroom.

Stewart said violence that harms innocent people sometimes is unavoidable, even in Iraq.

"You can't always separate out the combatants from the noncombatants," she said.

I can't imagine that testimony such as this will make a favorable impression on a New York jury.  And while I think I understand the judge's reasoning for allowing the questioning (it relates to the type of violence that the indictment charges some of the suspects of planning), it could be an issue on appeal.

Comments

[Sarah]

American Revolution and Civil War weren't about high-falutin' ideals like liberty and justice, though those words were bandied about. Those two conflicts were about economics and power, as all conflicts are. And violence is not only physical, it is economic and psychological as well (remember the impact of propaganda and brainwashing). The invocation of liberty and justice as ideals to seal the pact is a common occurrence but not the the root cause.

[Tung Yin]

Sarah, that may be right, but somehow I don't think it's going to win a jury over.

[Kyle K.]

Wow--what an interesting case, especially from an evidence perspective. To the extent that this line of questioning was only about the defendant's _beliefs_, I would think the probative value would be HIGHLY outweighed by its prejudicial impact, especially the question regarding what targets should be hit. The prosecutor is attempting to prove that because the defendant thought violence was an acceptable means of social change, that she then illegally carried out her client's will. In other words -- because you have radical thoughts, you're a bad person and more likely to carry out these crimes. The excerpt even sounds like the defendant is tacitly admitting to the crime! What could be more prejudicial to (as you noted) a New York jury than a statement that supports the use of violence in public spaces for political ends. Yeah. I'd call that plain error.

I'm not sure how this case would affect the zealous advocacy of defense attorneys defending suspected terrorists because I would think that few of such attorneys would be _personally_ ideologically committed to the violent means of their defendants. If I were a criminal defense attorney and an AUSA came to me asking questions about the messages I may have sent to my defendant's cohorts, I say "hey man, I'm just here to give my guy a fair shake... no violent overthrows for me!"

[Sarah]

Of course, an examination of root causes would not ever win a jury over. Have you *ever* been on a jury? Talk about least common denominator! And appeals to emotion. I've been on 6 juries (as one judge said, "we've got your number haven't we?") and never once have I had the experience of sticking strictly to the evidence and to the judge's instructions without a great deal of effort by two or three individuals bound and determined to follow the evidence and ignore "what everybody knows happened" and toss out appeals to emotion. Sheesh!

[Fed.No.84]

Good grief! Ms. Stewart is doing exactly what a defense attorney would not want his or her client to do. Idiotic.

Then again, does she want to win, or does she want to turn the courtroom into her soap box? If the latter, prudence would suggest she use the op-ed page.

[Alan]

Right, the defendant's seat does not seem like the proper place for espousing political beliefs, especially not about revolutions or violence. From what I understand, isn't the whole idea of the American court system to have two sides fight vigorously for the win? Her testimony seems to miss that point. I agree with the previous comment. Write to an op-ed page after you're found innocent.