Likelihood the conviction will stand
Tuesday, April 13, 2004: 98 percent
The government's argument against Martha Stewart's request for a new trial was persuasive, so the possibility of a retrial becomes even more remote. The meter, which now measures the likelihood that Stewart's conviction will stand, jumps back to 98 percent.
Last week, the government responded to Martha Stewart's request for a new trial by making the request sound ridiculous. According to the government, when the defense argued that if juror Chappell Hartridge had been honest on his jury questionnaire he would have been challenged for cause, they neglected to mention that 15 other potential jurors with similar "histories of lawlessness" weren't challenged. Morvillo and Co.'s initial response to this ostensibly compelling point was a press release, not a legal brief (which is expected this week). In the release, the defense blasted the government for selective prosecution: Only a month after touting the verdict as a demonstration that, no matter who you are, if you are dishonest, the government will come after you, the prosecutors were exonerating Hartridge for perjury.
Fairness aside, the government's argument was persuasive. Even if the defense can prove Hartridge lied on his questionnaire—which, ironically, the government argues that he probably did not—they still have to prove that 1) if he had been honest, he would have been dismissed; and 2) his lies concealed a bias that affected his impartiality. On the first issue, as described above, the government argued that numerous prospective jurors with "histories of lawlessness" weren't challenged, so a prior Hartridge arrest wouldn't necessarily have been grounds for dismissal. On the second, the argument was that Hartridge's alleged lies didn't conceal a bias, at least not one worth challenging.
Hartridge's post-verdict sound bites ("message to bigwigs," "victory for the little guy," etc.) suggest that, like others, he viewed the case as being about not false statements and obstruction of justice, but fat cats fleecing the public and insider trading. Given that the case wasn't about these topics, except symbolically, one could argue—as the defense has—that Hartridge was so biased that he misperceived reality. On the other hand, one could argue that Hartridge was simply a product of his times: After the pain of the market crash, he just wanted what most people wanted—executive blood. If so, this is bias, but it's zeitgeist bias, not personal bias. In the late 1990s, in contrast to today, people wanted corporate executives deified, not taken out and shot. One imagines that, at the height of the McCarthy era, few people were tossed off juries for being anti-Communist.
Beneath the government's logic vis-à-vis Hartridge, of course, is more of the irony that underpins this case. The government suggests that Hartridge didn't lie on his questionnaire, but just made a mistake. Because Hartridge's assault charges were dropped, the theory goes, he might not have realized that he had to mention the arrest on his questionnaire—or might have just forgotten about it. And maybe so. But if it is possible to forget that you were arrested for allegedly beating up your girlfriend, or to conclude that, because the charges were dropped and the record sealed, you weren't required to mention the incident when asked (under penalty of perjury) whether you had ever been "questioned by law enforcement, accused or, [or] charged with" a crime, it seems similarly possible that, when you were asked why you sold 3,928 shares of ImClone stock, and you explained that, among other reasons, you "didn't want to be bothered over your vacation," you might have concluded that this was enough, that you didn't also have to mention that your broker's assistant had told you that the CEO of the company was selling some shares.
Listening to the government make the same arguments about Hartridge's inaccuracies as the defense made about Stewart's is, if nothing else, an amusing reminder of the role-playing inherent in the adversarial system. In this vein, one can't help but wonder how the trial would have gone if the roles been reversed—if Karen Seymour and Michael Schachter been charged with defending Stewart and Bob Morvillo and Jack Tigue with prosecuting her.
"The government does not condone Mr. Hartridge's inaccurate responses to the jury questionnaire if indeed he did make them intentionally," the government said in its response, covering its bases, addressing the possibility that Hartridge might, in fact, have lied. "Accurate and forthright answers at voir dire are, of course, vital to ensuring that the defendant's and the Government's right to a fair trial is preserved."
Because this is true—and because the government shouted from the rooftops that Stewart was being prosecuted not for who she was but for what she did—we might well ask why one act of apparent dishonesty merits prosecution on five felony charges and the other gets a pass. The practical answer, of course, is that if you prosecuted everyone who lied on a jury questionnaire, you would never have time to do anything else. And the broader, equally practical answer is that justice is selective. But we knew that already.