FYI: [3-6-04]


Let me put my cards on the table: I’ve been one of those rooting for Martha Stewart’s side in her recent legal tangle with the feds, but — let’s get real: Don’t blame her attorneys for her conviction.

Suppose Judge Miriam Goldman Cedarbaum had not dismissed the main charge – the one carrying a long prison term for Martha’s “sin” of having publicly claimed her innocence, allegedly to boost the stock of Martha Inc. Had Martha been acquitted by the jury on that offense but convicted on the lesser charges, the mixed result would have been seen as a defense victory.

More to the point: In the dynamics of a criminal trial, judge Cedarbaum’s decision to dump the main charge was a gift to the prosecution whose poor charging judgment in the first instance risked a backlash acquittal on all the charges.

The Stewart defense team is naively being criticized for not putting Martha on the witness stand or for “not coming up with more defense witnesses”. This assumes three things that were probably not the case: (1) that Ms. Stewart could have withstood a blistering cross examination with such composure, persuasiveness and credibility that she would have won over the jury and not actually made things worse for the defense; (2) that, in the event that this strategy failed, i.e., that Martha were convicted for lying and cover up, that the trial judge would not be moved to hammer her at sentencing for the sin of taking the stand to compound her “lies”; (3) that there actually existed a loyal cadre of credible defense witnesses lined up to exonerate her that were turned away.

It may come as a shock to the cynical observers of the criminal justice scene that the truth does matter: It constrains defense choices and strategies all the time. Reasonable doubt can be teased out of a shaky prosecution case – that happens all the time – but witnesses and affirmative defenses can’t simply be manufactured. At least outside the world of the Sopranos.

The real problem here is that Martha should never have been charged. Most state level (and some federal prosecutors) tend to exercise seasoned discretion when bringing charges; their decisions are leavened by a sense of proportion and common sense. Sadly, that was not the case here. It is too difficult to assess Martha’s ultimate prospects on appeal from this distance, but the statistics don’t favor reversal. Many are called but few are chosen in the world of post conviction appeals.

This leaves the sentencing question in the harsh realm of federal sentencing, where judicial discretion is heavily controlled by “guidelines” that hamper and constrain the exercise of mercy.

Jay B. Gaskill

Copyright © 2004 by Jay B. Gaskill

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Jay B. Gaskill, attorney at law, via e mail:

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