Blunders that sabotaged her case

Ohio attorney once convicted of securities fraud offers perspective on ImClone trial

Martha Stewart: Commentary

March 08, 2004|By Karen S. Bond | Karen S. Bond,Special to

High-profile cases like the one involving Martha Stewart provide a window into America's justice system.

In fact, the Stewart case is a textbook example of all that's wrong with the system. As a civil litigation attorney in Columbus, Ohio, and federal inmate No. 65078-061, my criminal legal odyssey, which ended in 1999 with a 38-month federal prison sentence, began much like Stewart's -- when a "target letter" from an assistant U.S. attorney was delivered to my Ohio home via the U.S. Postal Service.

By looking at the six-week Stewart trial, the verdict on Friday and the June sentencing -- with their collateral consequences - the inherent problems of "The War on White Collars," waged by the U.S. Justice Department under Attorney General John Ashcroft, become apparent.

Beginning the moment the FBI called in Stewart for a meeting, her chances of not ending up in prison dropped to 5 percent. According to the 2001 Compendium of Federal Justice Statistics by the Justice Department, 95 percent of all federal charges end in a conviction -- whether through a plea bargain or guilty verdict at trial.

With only a 5 percent chance of securing an acquittal, most white-collar federal defendants opt for a guilty plea to minimize their risks of a long prison sentence. Samuel D. Waksal and Andrew S. Fastow and his wife, Lea Fastow, of Enron Corp. fame are prime examples of this phenomenon.

Waksal, the jet-setting scientist and entrepreneur who founded ImClone Systems Inc., is serving a prison term of more than seven years after pleading guilty to securities fraud charges related to his sale of 4,000 shares in December 2001. In his plea, Waksal did not implicate his friend Stewart.

Andrew Fastow, Enron's former chief financial officer, is serving a 10-year prison term after pleading guilty last month to charges related to the energy-trader's debacle. His wife has been sentenced to five months in prison and a year of supervised release on charges stemming from filing false tax returns from 1997 to 2000. She was Enron's assistant treasurer.

As a former stockbroker and one of the nation's most-successful entrepreneurs, Stewart's first mistake was putting her fate in the hands of a lawyer. If Stewart was going to go to trial, she should have taken control of her own defense just has she has controlled her company, Martha Stewart Omnimedia Inc. No one knows their case better than the defendant.

A failed strategy

It was clear from the start that things were not at all copasetic in the Stewart camp. Her attorney, Robert Morvillo, may be the best white-collar defense lawyer money can buy, but this case wasn't about the law: It was about America's criminalization of moral and ethical issues.

Stewart's best chance at winning over the jury of eight women and four men was lost when she walked into U.S. District Court in Manhattan carrying Hermes Berkin bag instead of a Kmart Corp. Accessory Works bag. Clearly, if stupidity were a crime under America's conspiracy laws, her image consultants would be facing a 20-year prison sentence, too.

On one hand, you had Morvillo telling the jury that they should trust his client, and on the other hand not a single juror qualified as one of Stewart's peers. While the U.S. Constitution guarantees each American charged with a crime a jury of her peers, the reality is that the possibility of finding enough millionaires to create a jury pool is virtually zero.

Instead of Morvillo focusing the jury's attention on what they had in common with Stewart, his questions pointed out a stark contrast in the wealth disparity between Stewart and the "jury of her peers."

For instance, in his closing argument last week Morvillo implored the jury to let Stewart go free such that she might get back to her life saying, " and that would be a good thing."

In doing this, Morvillo alienated jurors by inferring that even if Stewart had made a mistake, it did not matter because it would benefit all Americans if his client could return to her privileged life as America's domestic doyenne in order to perpetuate a lifestyle that they, the jury, then could emulate.

Stewart should have put on a Jaclyn Smith suit from Kmart and testified in her own defense. Even though some would argue that Morvillo was right to keep her off the stand, Martha Stewart clearly knows how to package and sell Martha Stewart to the America that comprises the "jury of her peers."

The human factor

Federal defense attorneys, for the most part, simply do not understand the federal prison reality. What they do understand, however, is collecting their huge fees upfront, because there is a 95 percent chance their client is headed to prison. Even those federal defense attorneys like Morvillo who clearly understand the law do not understand the role human dynamics plays in jury decisions.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.