Mariana Descartes—Of What Can I Be Sure?
Reports on the antitrust suit.
Feb. 20 2004 10:37 PM

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Today's Martha Meter reading: 32 percent

Chance of conviction
Friday, Feb. 20, 2004: 32 percent
The defense repaired some of the Pasternak damage, and the prosecution rested. Stewart's chances of conviction drop back to 32 percent.

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Remember that battleship lurking off the shores of Martha Stewart-land—the battleship in the form of Mariana Pasternak's apparent recollection that Stewart had said, "Isn't it nice to have brokers who tell you those things"? On cross-examination this morning, Bob Morvillo was in no hurry to attack the battleship. When he did, however, it took him only eight questions to fire a torpedo into the hold.

Q: Now, you've also testified that there was another conversation during the course of that vacation … ?

A: Yes.

Q: OK. But you can't tell us when that second conversation took place, right?

A: I cannot tell you. I don't know.

Q: Can you tell us whether it was in Mexico or whether it was in Panama?

A: I believe it was in Mexico.

Q: Is that a recollection or a belief?

A: That's a belief.

Q: So if I pushed you and said was it in Panama or Mexico, you would say it was probably in Mexico?

A: Exactly.

Q: OK. Can you tell me whether it was before or after the conversation on the terrace [about Sam Waksal and his daughter selling]?

A: I do not recall that.

Q: Can you tell me anything about the context of that conversation, how that one remark came up?

A: I do not remember anything about the context. I just see a scene that was somewhere on the grounds of that hotel.

Q: Now, is it fair to say you are not even sure that that statement was made or whether it was just a thought in your mind?                                        

A: It is fair to say. I do not know if that statement was made by Martha or just was a thought in my mind.

"It is fair to say I do not know if that statement was made by Martha or just was a thought in my mind." In the stunned courtroom, we rewound to yesterday afternoon. Yesterday afternoon, after Assistant U.S. Attorney Michael Schachter had finished leading the auburn-haired, thick-accented Pasternak through her memory that Stewart had mentioned the Waksals' sales, he had asked one last question:

Q: Do you have any recollection of speaking with Ms. Stewart on the subject of brokers while you were in Mexico?

A: I remember one brief statement, which was: "Isn't it nice to have brokers who tell you those things."

As described, this recollection had hit the courtroom like a cannonball. It had eclipsed the riveting testimony and cross examination of the much-anticipated ink expert. It had echoed throughout the courthouse's marble hallways. It had dominated the news. It had seemed the most damaging single sentence of the trial. And now, the next morning, as plainly and forthrightly as if describing the weather, Pasternak was saying that she might have imagined it. Lest the jury members, reeling in disbelief, might be thinking it was they who were hallucinating, Morvillo asked the question again:

Q: You are not sure that the words were actually spoken by Martha Stewart or whether they were words that just are somehow embedded in your mind as one of your thoughts?

A: Exactly, I do not know if Martha said that or it's me who thought that those words.

"OK," Morvillo said, "I have no further questions." And then, in a sidebar, he excoriated the government for intentionally creating the impression that Stewart had made the statement when it knew full well that Pasternak wasn't sure she had (Pasternak, apparently, had shared her confusion with not only investigators but the Grand Jury). Feebly, the government countered that Pasternak had claimed her "best recollection" was that Stewart had said it. When the sidebar disbanded, Assistant U.S. Attorney Michael Schachter hobbled back to the lectern.

Q: Ms. Pasternak, yesterday you testified, "I remember one brief statement, which was, 'Isn't it nice to have brokers who tell you those things?' " And in response to Mr. Morvillo's questions today, you said that you are not sure whether that was something that Ms. Stewart said or that it was something that you thought.

A: Yes.

Q: Ms. Pasternak, can you please tell us, what is your best recollection, that this was something that Ms. Stewart said or that it was just something that you thought, your best recollection?

A: I really am not very sure.

Waylaid, Schachter slumped back toward his chair. "No recross, Your Honor," Bob Morvillo chirped, perhaps a bit too gleefully. Just as he was about to sit down, Michael Schachter reversed course. "Your Honor," he said. "I'm sorry, one additional question."

Q: Ms. Pasternak, in advance of your testimony, you met with people from the government, is that right?

A: Yes. …

Q: And in one of those meetings, Ms. Pasternak, fairly recently, you were asked what was your best recollection … about whether this was something that was said by Ms. Stewart or whether it was something that you thought, isn't that right?

A: I recall being asked—If I can talk about that?—recall being asked if I were to take a guess, what—

THE COURT: You can't guess.

A: —what do I think—what is the highest percentage I remember, that's how I recall it. That's how I got it.

Q: Ms. Pasternak—

A: If I were to think—what I do think, what am I most precisely sure, that Martha said it or I thought it. I believe that Martha said it, but I'm not sure if she said it or I thought it.

Q: Ms. Pasternak… What is your best belief, sitting here today?

A: That Martha said it.

So Assistant U.S. Attorney Schachter repaired some of the damage. Some. For, in addition to saying that she might have imagined the statement that, just yesterday, she attributed to her good friend Martha Stewart, Mariana Pasternak, in the space of two minutes, also seemed to contradict herself: In the first minute of Schachter's redirect, Pasternak was "really not very sure" whether it was her best recollection that Stewart had made the statement; in the second minute, this was her "best belief." If there is consolation for Schachter & Co., it is that, on balance, Pasternak's testimony probably still hurts Stewart: If nothing else, it seems to confirm Douglas Faneuil's assertion that he passed on the Waksal sale information.

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