Martha Stewart Sentencing
“Today is a shameful day,” said Martha Stewart moments after being sentenced to five months in prison, five months of house arrest, and two years of probation and fined $30,000.00. The charges alone cost Stewart her position as CEO of Martha Stewart Living, Inc., millions in stock, two-and-a-half years of anxiety, and her good name. Prosecutors are rarely sated, Federal prosecutors least of all.
Even taking the accusations in the light most favorable to the prosecution, Stewart harmed no one. She killed no one. She sold drugs to no one. She brandished no weapon. Yet, she will serve time in prison. The Federal Justice System is not a level playing field where even-handed prosecutors pursue real criminals. Instead, it is an absurdity where cold blooded Federal avengers grease the pole of “justice” they will use to slide the accused into a tub of shit. Federal prosecutors enjoy a 98% conviction rate – not because they are brilliant or even above-average legal minds or pursue only the truly guilty, but because the rules in Federal District Court are slanted so far in their favor that their victory is nearly guaranteed.
Martha Stewart did not receive a fair trial. The prosecution indicted Stewart for lying to Federal investigators, but they tried her for insider trading. In its opening statement, the prosecution repeatedly portrayed Stewart as having violated the insider trading laws and then trying to cover up those violations by lying to investigators. But Federal District Court Miriam Cedarbaum, at the prosecution’s urging, ruled that Stewart could not argue that she had not committed insider trading. In short, Cedarbaum permitted the prosecution to splatter Stewart with a wheel barrel full of horse dung while preventing Stewart from hosing herself off. In Federal Court, they call that a fair trial. Departing jurors acknowledged on camera that they had believed Stewart had committed insider trading.
Judge Cedarbaum was not out to deny Stewart a fair trial. Well intentioned jurists in Federal District Court, tethered as they are by asinine Federal Supreme Court and Court of Appeals decisions and nuttier Federal laws, are unable to provide a fair trial. And so restrictive are the Federal Sentencing Guidelines that Federal judges are denied any opportunity to show mercy to the convicted. Like an Anaconda coiled about its prey, the Sentencing Guidelines squeeze mercy, compassion and forgiveness from the hearts and souls of Federal judges. Being only a cog in a mindless, heartless system, Judge Cedarbaum was never empowered during this debacle to mete out justice.
It is a shameful day. The Federal Government will imprison a woman for lying to its investigators. Not a lie that stampeded a country into an unnecessary war, that defrauded the country in millions of dollars, or endangered people’s lives. The lie was no more than the denial of wrongdoing, a protestation of innocence. Shame on us for permitting our government to terrorize us.
U.S Attorney’s Office Finds No Incongruity in Using a Perjurer to Prosecute Martha Stewart
26 May 2004– Even I, a criminal defense lawyer, was surprised when, while checking the Internet for news, I learned that Larry F. Stewart, the very expert who testified as an “ink” expert on behalf of the U.S. Government against Martha Stewart, had been indicted for perjury. After spending the last ten years battling unethical prosecutors, cops who lie as easily as they breathe, and dishonest state crime lab forensic experts, I was still stunned.
My initial shock was not learning that a government expert had “cooked the evidence,” but that he had been indicted for perjury by those who had gobbled up his opinion and gravely regurgitated it before the jury. These same Assistant U.S. Attorneys had, after all, selected Larry Stewart from among available forensic experts to examine the ink used by Peter Bacanovic to make the “@60″ notation, then to compare that ink to other notations on the same sheet, and to testify to his findings in a trial of global interest. Of course, the prosecutors would only call Mr. Stewart to testify if his findings would help them convict Martha Stewart. And Mr. Stewart no doubt understood from the assignment itself that singling out the “@60″ ink from the other inks used on the spreadsheet would endear himself to prosecutors giddy at the prospect of a forensic smoking gun. That these little white knights at the U.S. Attorney’s Office claim to have been unaware that Mr. Stewart was committing perjury is most troubling. Unlike many District Attorneys’ Offices, the U.S. Attorney’s Office is awash with money and resources. In cases which generate no public interest whatsoever, the Assistant U.S. Attorney will be fully prepared. From the inception of even a routine case, an Assistant’s work, his decision making, and his judgment will be carefully reviewed and supervised by other Assistants. These Assistants can be counted to thoroughly vet the least important witness in any case.
In the Martha Stewart trial, there was no more important witness for the prosecution than Larry Stewart. The uniqueness of that ink would hang Ms. Stewart and Bacanovic. With the world wide coverage of the trial, the prestige of the U.S. Attorney’s Office for the Southern District of Manhattan hung in the balance. The Assistants very likely put Mr. Stewart through countless, grueling mock cross-examinations. They could be expected to check and re-check his basis for every finding, statement, and contention. There is simply no way that these Assistants were caught unaware. It would not be surprising to find that these little white knights, in their collective zeal to persecute Martha Stewart, directly or indirectly, encouraged Larry Stewart to stray from the reservation of truth. Far more troubling is the U.S. Attorney’s Office’s insistence that Mr. Stewart’s perjury does not undermine the “validity or integrity” of the convictions of Ms. Stewart or Bacanovic. The U.S. Attorney’s Office thought Mr. Stewart’s findings critical enough to their case to call him to the stand. Prosecutors, after all, should not be calling expert witnesses to the stand to add nothing more than some fancy window dressing. Every attorney, whether working for the government or for the defense, implicitly vouches for the credibility of the witnesses he calls to the stand. No rational lawyer would call to the stand an expert currently under indictment for perjury, particularly when that expert is accused of committing perjury in his capacity as an expert witness. No jury is going to trust the findings of a perjurer. Shame on the U.S. Attorney’s Office for taking the position that Mr. Stewart’s perjury was serious enough to warrant indictment, but not serious enough undercut the convictions of Ms. Stewart and Bacanovic.
Finally, the U.S. Attorney’s Office has indeed become a masterless ronin when it countenances using perjurers to prove a citizen a liar. The U.S. Attorney’s Office should join Stewart’s and Bacanovic’s lawyers in their motions to overturn the convictions. After that, they should just leave Martha alone.
The Martha Stewart Verdict
2 April 2004– Many have been highly critical of Robert Morvillo’s defense of Martha Stewart. Following the guilty verdicts, Stewart reportedly walked away from the defense table without so much as a word for Morvillo. Although his claim at trial that Stewart and former stockbroker Peter Bacanovic were too smart to have planned such an obviously flawed cover-up of their motives for selling her Imclone stock did not raise reasonable doubt with the jurors, this trial strategy may have been forced upon him by Stewart. She is, after all, regarded as a control freak. Coldly shunning Morvillo spoke volumes about Stewart as a person and a client.
While a more honest defense might have played better with the jury, the choice was not necessarily Morvillo’s to make. A criminal defense lawyer cannot admit fault on behalf of his client if that client obstinately refuses to admit anything – even to her lawyer. Further, it is far more difficult to obtain a fair trial in Federal Court. And with the help of some asinine pre-trial rulings from Judge Miriam Cedarbaum that effectively hog-tied the defense, the U.S. Attorney’s Office was able to con the jury into believing that Stewart and Bacanovic had committed the uncharged crime of insider trading. Stewart was charged with conspiracy to obstruct justice, obstruction of justice and two counts of lying to investigators. She was never charged criminally with insider trading for her Dec. 27, 2001, stock trade of biotech company ImClone. Naturally, the prosecution wanted the jury to believe that Stewart had lied to Federal investigators because she believed she had committed the crime of insider trading. Judge Cedarbaum ruled, however, that the defense could not raise the issue of insider trading or even argue that Stewart had not committed insider trading because she had not been charged with insider trading. By preventing the defense from even addressing the motive that the prosecution cleverly, but indirectly, dangled before the jury, Judge Cedarbaum crippled the defense. Since neither side tackled the insider trading issue, the jury no doubt assumed that Stewart had committed that crime. It would be natural for a jury to conclude that if the defense wasn’t contesting illegality of the Imclone stock sale, Stewart must be guilty of insider trading.
To the surprise of many, Stewart did not commit insider trading – and the U.S. Attorney’s Office would admit as much if it had some integrity. In selling her Imclone stock, Stewart acted on the advice of her stock broker – who had no inside knowledge. A competent stock broker who learns that the president or CEO of a company is dumping large blocks of his shares would advise his client to sell. The president or CEO may be committing insider trading as he likely has “inside knowledge.” Stewart had no such knowledge. Had Imclone CEO, Sam Waksal disclosed to Stewart that the Food and Drug Administration declined to review his company’s experimental cancer drug, Erbitux and had Stewart acted on that knowledge by selling her shares, she would have been guilty of insider trading. But that was never the case here; she was only acting the advice of her broker.
Some so-called experts have derided Morvillo for not putting Stewart on the stand. That criticism is unwarranted. No experienced criminal defense attorney is going to put the accused on the witness stand who is accused of lying, particularly in this case where the lie was so transparent. No good at all was likely to come from watching Stewart’s pained attempts to explain deleting an incriminating e-mail (that she later to returned to its original form), her calls to Bacanovic and Imclone CEO, Sam Waksal the day she made the trade. Any empathy a jury feels for the accused vanishes once he or she takes the stand and lies to the jury. Juror empathy for Stewart was likely in short supply from the beginning. Furthermore, while the trial lawyer is entrusted with making nearly all tactical decisions during the trial, it is the solemn right of the accused to take the stand. Not taking the stand was Stewart’s decision to make.
Basically, Stewart was convicted for covering up a crime she didn’t commit.