Wednesday, August 19, 2009

Martha Stewart--Would A Different Defense Strategy Have Worked?

In addition to being a former federal prosecutor, (and now being a criminal defense lawyer), I have taught criminal justice courses at a local university for a number of years. In one course, called "White Collar Crime," I have often led class discussions about infamous cases involving public figures. One popular topic involves the Martha Stewart case.
The topic and my question for you, (my bright "blog students"), to consider is: Could she (and her defense lawyer team) have devised a different strategy which might have helped her avoid a conviction and five month sentence for lying to federal investigators about insider trading? I believe Martha Stewart could have won and here's my suggestion about a winning strategy!
(Of course, please let me first emphasize that this is merely a hypothetical "classroom" exercise. Each case is different and a strategy that might work in one case might not work, or be advisable, in another case. And please also let me emphasize that this "classroom" exercise is not intended to impugn either Ms. Stewart, or her fine legal team, or their strategies, in any way!) But after making all these caveats, here's my two cents worth about how the "diva of decorating" might have avoided a jail cell!
If I had been Martha Stewart's defense attorney, I would have advised her to appear and come clean, publicly, from the very beginning. In other words, instead of having a client appear to "stone wall" it, or cover up, with investigators, (or the public), I submit that many public figures should more often consider making a public "mea culpa." In other words, in some circumstances, you should openly admit your mistake and simply say, "I'm sorry."
Isn't it possible that Richard Nixon would have remained president but for his infamous post-Watergate burglary cover-up? Didn't Watergate show that it's the cover-up that gets a public figure into trouble more often than the original crime? Are you listening, John Edwards?
So, in the Stewart case, I might have recommended to her that she should call a press conference, admit that she'd gotten a tip from a close friend about selling her stock, and that, not knowing it could technically violate the law, she had sold the stock. I would also suggest that she would have been better off if she had apologized for not knowing about the fuzzy laws on insider trading, but that she intended to make amends by immediately donating to charity the full value of her benefit from the improper stock sale, (or perhaps several times that amount).
What do you think? While this strategy may sound risky, don't you agree Ms. Stewart could have generated sympathy for her plight by telling the truth in this fashion? And don't you agree that sometimes simply telling the truth, publicly, may the best policy, along with being the best, winning defense strategy in white collar criminal cases?

1 comment: