Likelihood the conviction will stand
Friday, July 9, 2004: 98 percent
Judge Cedarbaum denied Martha Stewart's second request for a new trial. The chance that the conviction will stand pops back to 98 percent. Sentencing is still scheduled for Friday, July 16.
And so, having dealt at last with the "crime" phases of the case of U.S. vs. Martha Stewart and Peter Bacanovic, we come to the "punishment." Yesterday, Judge Miriam G. Cedarbaum cast aside the final hurdle, a request for a new trial based on alleged perjury by government witness and (former) national ink expert Larry Stewart. Thus, barring another bizarre twist, Martha Stewart and Peter Bacanovic will be sentenced next Friday. Most experts expect both to receive 10 to 16 months in prison.
As to the alleged perjury, Judge Cedarbaum shot down all of the defense's arguments. The defense had sought to prove that the prosecution "knew or should have known" about the perjury and that the alleged lies "could have affected" the verdict. Judge Cedarbaum ruled that Larry Stewart was neither a member of nor an "arm" of the prosecution (i.e., that the prosecution did not know) and that the prosecution also did not miss any "red flags" (i.e., shouldnot have known). (She didn't address the defense allegation that Larry Stewart had been banned from testifying in Canada for exaggerating on the stand; this nugget may go the way of most UFO sightings.) Judge Cedarbaum also ruled, convincingly, that the perjury did not have a "reasonable likelihood" of affecting the verdict—a slightly higher standard than the defense's "could have affected," but either would probably have delivered the same result. Bottom line: The verdict stands.
Two and a half years after the events of Dec. 27, 2001 (the ImClone sale), two years after Congressional leaks about an insider-trading investigation (and the resulting media mayhem), a year after the indictment (for lying and obstructing justice, not insider trading), six months after a riveting trial (which, rightly or wrongly, came to symbolize "The Revenge of the Little Guy"), four months after the verdict (guilty on most surviving counts), three months after the defense accused a juror of committing the same offense he had convicted the defendants of (lying—in his case, on his jury questionnaire), and one month after the government charged one of its own witnesses with perjury (Larry Stewart), fatigue has set in. The defense will continue to protest that the indictment was unfair, that the trial and verdict were tainted, but, at this point, for some reason, it is hard to care. Martha Stewart and Peter Bacanovic fought and lost. Now, they will pay (the rest of) the price.
To follow a trial like this is to learn firsthand how history is written. You start with a bunch of "facts"—phone records, e-mails, messages, order slips, travel logs, memories, etc.—and, with them, you try to reconstruct what happened. You do so knowing that you will never know for certain what happened but hoping that you will eventually know what probably happened—and/or, in a court of law, whether a version of what happened has been proved beyond a reasonable doubt. After sitting through the trial, I concluded that the prosecution had not proved its case beyond a reasonable doubt but had told a more convincing story about what probably happened. I have since spoken with a former assistant U.S. attorney who said that most juries vote on this lesser standard, and that prosecutors count on them to do so.
Once the verdict is delivered, of course, the fuzziness disappears. Our need for certainty and closure takes over, and facts and theories become history. Four months after the verdict in U.S. vs. Martha Stewart and Peter Bacanovic, the case can be reduced to this:
They were convicted.
They're going to jail.
Bring on the sentencing.