March 12, 2004
JUSTICE IS BLIND; WE NEEDN'T BE:
When Silence Isn't Golden: Martha Stewart's failure to testify holds a lesson for other celebrity defendants (Jonathan Turley, March 12, 2004, Jewish World Review)
The decision not to have Stewart testify in her own defense followed a conventional strategy. Defense lawyers are risk-averse; they usually prefer to play the cards they have rather than risk giving the government a better hand. Silence is a strategy that is normally adopted when you are more concerned about losing rather than gaining ground.In this case, however, they held a bad hand. The trial was not going well. The defense had failed to significantly rebut the testimony or the credibility of key prosecution witnesses, and, by the time the government closed its case, the odds of a conviction were high without a dramatic change — a witness who could reshuffle the deck. There was only one possibility, and that was Stewart herself.
Having Stewart testify would clearly have been a high-risk move, the ultimate legal Hail Mary pass; it might have yielded a hung jury, with one or two jurors willing to hold out against conviction.
Within the four corners of the legal system you're required to believe a great number of patently absurd things--for instance, that taking the 5th has no bearing on one's guilt or innocence. However, as a columnist you should be able to face the reality that if she were innocent she'd have just testified. Posted by Orrin Judd at March 12, 2004 9:17 AM
reader Ed Hess writes: I know I saw it somewhere that the white collar crime defense crowd believed that Martha did testify- in front of a mock jury- and the feedback wasn't good, hence the decision not to put her on.
Yeah, I heard the same thing. Given her TV persona and what you hear about her obnoxious personal behavior (largely confirmed by trial testimony), the focus groups probably hated her.
Posted by: Robert Schwartz at March 12, 2004 9:59 AMThis is probably right.
The reason criminal defendants tend not to testify isn't so much what their going to say about the present case as that, as soon as they take the stand, the prosecution can open up previous convictions. Everyone accepts that, once the jury discovers that you're an habitual criminal, you're going regardless of the evidence.
As this doesn't apply to Martha, there are really only four reasons for her not to testify:
1. Should would have told the truth, and it was damaging to her. Maybe she is so honest that she would testify truthfully about having lied, but it doesn't seem likely. Note that perjury here would almost certainly have been costless.
2. She would have lied, and her lawyers knew it and couldn't put her up. This isn't all that likely either.
3. Her lawyers knew she would do herself more harm than good, and not just in the substance of her testimony. If this is the case, it is useless to second-guess them.
4. One very interesting thing is that she was talking with lawyers at the very competent Wachtell Lipton firm throughout. Why, then, did she not plead an "advice of counsel" defense (i.e., I can't have intended to break the law because I was doing what my lawyer told me to do). This can be a powerful defense in cases that turn on the accused's state of mind, because the correctness of the advice doesn't matter. However, pleading advice of counsel necessarily waives the attorney-client privilege, so what she was told by Wachtell would have come in. My guess is, that's what the defense wanted to avoid and might even have been part of the reason she didn't testify.
Posted by: David Cohen at March 12, 2004 10:13 AM