Martha Stewart: The Return and Revival of A Media Mogul

[Photo from wikipedia]

Have you heard the news this week?  She's back!  Yes, according to various news reports, multi-media mogul Martha Stewart is back on the board of her own company, Martha Stewart Living Omnimedia.  According to reports, Ms. Stewart has now completed a five-year ban from participating as an executive or board member of a public company. 

The five-year ban had reportedly been part of a settlement with the Securities and Exchange Commission, based upon, or related to, her alleged complicity in insider trading of ImClone stock.  You will recall that Ms. Stewart was never actually convicted of insider trading.  She was only convicted, in 2004, of essentially lying to investigators about the facts related to the ImClone stock transaction.  She served 5 months in prison.

I still maintain, as a former federal prosecutor, (and currently, as an Augusta, Georgia criminal defense lawyer), that, if I had been her criminal defense attorney back in 2004, I could have possibly helped her avoid a criminal conviction.  In short, as I have written here previously, I believe that, in some grand jury investigations, targets could avoid prosecution if they would avoid making false statements to government agents.

But now, she is back -- on the board of her own company!  Don't you agree that she has paid her debt to society?  Doesn't she deserve a chance, once again, to rule her multi-media empire?  What do you think?

Tiger Woods Part II: A Point of Clarification!

In the last post, I tried to make the point that, assuming someone in Tiger Woods' position elects to talk with the police, (after consulting with his criminal law attorney), he should avoid telling anything but the truth. In other words, as in cases like Martha Stewart's, sometimes it's the making false statement or obstruction of justice charges that cause you more problems than the underlying offense. However, it should also be pointed out that, in many criminal investigations, it is simply best not to talk with the police at all!

Tiger Woods: Please Avoid the Sandtrap!

As of this writing, Tiger Woods has been discovered bleeding and semi-conscious in the street outside his Florida home. His wife has reportedly told authorities that she broke the rear window of his Cadillac SUV, after she allegedly heard him have an auto accident outside their home at 2:30 in the morning. The Enquirer reports, (i.e. gossips), that he has allegedly engaged in an affair. Thus far, Tiger has refused to talk with police. Yes, these and other facts all sound suspicious. But this isn't a celebrity gossip blog! And such gossip is not our business and not the point of this post!
So, let's just focus here on a point I tried to make in an earlier post, (and illustration), about Martha Stewart. You may recall that I observed that, if Ms. Stewart had simply come clean and told the truth, in the beginning, about receiving the insider trading tip, she might have avoided prosecution. And the point here is that, in my opinion, Tiger should simply tell the truth. In my opinion, the worst thing that Tiger can do at this juncture is to lie to the police, (and public). In my opinion, this will only lead to a long, drawn out police investigation and potential police charges for making false statements. Instead, I hope that Tiger will, perhaps through his attorneys, find a way to cooperate with authorities and tell the truth to avoid further legal problems.
Tiger Woods has always shown sound judgment and impeccable integrity. His judgment on the golf course is unsurpassed. Here's hoping that he will likewise avoid the potential traps and show good judgment off the golf course, too!
What do you think?

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?