Should Martha Stewart's Lawyer Have Strongly Advised Her to Testify?
Assessing the Defense in the Stewart Case, Part One

When a trial goes wrong, it's always easy to blame the trial lawyer. And some have accordingly faulted Martha Stewart's lawyer, Robert Morvillo, for the fact that she was recently convicted on all counts.

Was Morvillo really to blame? Much of the answer lies, of course, in attorney-client privileged conversations to which no one but the parties had access. Still, it's possible to offer some commentary on why the fault for the convictions might, or might not, lie in part with Morvillo.

In my view, Morvillo made some missteps -- particularly in his summation. But on the other hand, the decision not to have Stewart testify, whether his or hers, was probably the correct one.

In this two-part series of columns on the defense in the Stewart case, I will explain what I think Morvillo did right, and where he may have gone wrong. In this Part, Part One, I will discussion what I think was probably a correct decision not to have Stewart testify.

But in Part Two, I will discuss two more dubious decisions made by Morvillo and/or Stewart: The decision about what to include in the summation, and the decision whether to allow celebrity visitors who were friends of Martha's.

To begin, it's important to note that Morvillo is a legendarily talented Manhattan lawyer. Once, he was the head of the Criminal Division of the Southern District of New York's U.S. Attorney's' Office -- one of the star U.S. Attorney's Offices in the country. And currently, Morvillo's firm, Morvillo, Abramowitz, is one of the City's top white-collar criminal defense firms.

Morvillo is also reputed to be an extremely effective courtroom speaker -- a talent many lawyers, however brilliant, simply lack. Moreover, his personal win-loss record is excellent. He's won about half of the cases he's gone to trial on. And in Manhattan, where prosecutors tend to win their cases about 90% of the time, it's impressive to be able to give a criminal defendant a fifty-fifty chance of winning.

So any claim that Morvillo did less than an excellent job seems unlikely, in light of history to hold water. Decisions that outsiders may question, may, from an inside perspective, make perfect sense. With a lawyer like this, it is the critic who should have the burden of proof.

Another factor to take into account in evaluating Morvillo's performance is that Martha Stewart is a smart, strong-willed woman who has always succeeded on her own terms. She's used to telling others what to do -- after all, she was a CEO. So it's likely that she played a key role in steering her own defense.

That isn't necessary a bad thing. But it does mean that the case's strategic choices may not all necessarily have been made by Morvillo. An attorney must largely take direction from his client, not vice-versa.

And Stewart appears, generally, to be something of a loose cannon - or, to put it more sympathetically, an independent thinker. After her convictions, she posted a statement on her website MarthaTalks.com saying "I have done nothing wrong." It's unlikely that Stewart attorneys vetted this action, since, as Mark Allenbaugh recently discussed in a column for this site, this remark may well hurt her at sentencing. But apparently, she went ahead and posted it anyway.

That remark was subsequently removed -- probably on advice of counsel. But what replaced it was essentially the equivalent. In an open letter to supporters, the current site still says, "[i]t is your continued support that will keep me going until I am completely exonerated."

To be exonerated, one must be innocent of the charges brought. So in essence, Stewart is still saying the same thing she said originally: She is innocent. And she's saying it despite the fact that she doubtless has been informed that it will probably hurt her at her sentencing hearing.

In short, it seems that Stewart may have recently ignored her attorneys' advice on sentencing strategy. And if so, then she may well also have earlier ignored their advice about trial strategy, as well. And that's another helpful caveat for those who would blame Morvillo.

At trial, Stewart did not testify on her own behalf. It's impossible to know how much of this decision was based on Morvillo's advice, and how much on Stewart's own decision. After all, Stewart's Fifth Amendment right not to testify was hers to assert; Morvillo could not compel her to assert it.

Whoever was responsible for this decision, it is certainly a defensible one. There were both pros and cons to Stewart's testifying, as I will explain. And a risk-averse defendant here, which Stewart probably was, would probably have chosen not to testify.

Here were the pros of Stewart's testifying:

(1) Testifying would have humanized Stewart in the jury's eyes.

One juror, Chappell Hartridge, said Stewart's cold demeanor in court had struck the jury as "arrogant." Her testimony, even if flawed, would have humanized her. Psychologically, it's much harder to convict a feeling, speaking person than a silent figure who might as well be made of wax.

During the prosecution's case, Stewart had been described by witness Douglas Faneuil, in an email, as sounding like "a lion roaring underwater." Taking the stand and proving herself to be more lamb that lion would have won her points with the jury -- who might then have wondered if it was Faneuil who was lying, or at least overly harsh.

Stewart's life makes for a compelling story. She succeeded despite the odds in a man's world. After her divorce, she functioned as, in essence, a single mom. Her daughter, Alexis, grew up into a talented businesswoman in her own right, and a loyal supporter of her mother.

While these facts aren't relevant to Stewart's guilt or innocence, they are relevant to a jury's ability to see her as a real person, not an arrogant prima donna. If she testified, Stewart could have discussed these aspects of her background, facts to which jurors -- particularly the eight female jurors -- might have responded.

It's all the harder to convict a defendant with whom you may, in some respects, identify. It's hard to identify with Martha-Stewart-As-Imperious-CEO. But it's not so hard to identify with Martha-Stewart-As-Divorced-Working-Mom.

(2) Testifying would have given the jurors an alternative story to consider.

Stewart's decision to testify also would have convinced the jury that there were, at a minimum, two sides to the story. Conversely, her decision not to testify could have suggested to jurors that she had nothing to say to rebut the government's case.

Juror Hartridge commented that "I would have loved to have heard the other side of the story." Obviously, he was hoping that Stewart would testify. And that's no surprise: After hearing about someone for days, jurors want to hear from them!

Hartridge also suggested that the jury didn't penalize Stewart for not testifying; its members were aware that she had a right not to. But even if not testifying was okay in the jury's eyes, testifying would probably have been much better.

In particular, in a case where prosecutors say, "She lied," the jury is waiting to hear the defendant say, "I told the truth" - or even, "I may have fudged, but I didn't really intentionally lie. And I'm sorry I fudged." Stewart never did either.

Yet some sympathetic facts could support the "fudging" claim - Stewart did tell her assistant to delete a message from her broker, but she also told her to put it back later. And at one point, rather than lying outright, she claimed false memory. She could have portrayed herself as more scared and disingenuous, than crafty and lying. Who wouldn't be scared when confronted with government investigators?

(3) Testifying would have opened the way to Stewart's putting on a full defense case.

Defendants who don't testify are often also tempted to put on a very brief defense case. Otherwise, they may draw attention to their decision not to testify.

It's one thing to base your defense on the government's purported failure to prove its case, and thus to put on a slim defense case -- as Stewart did. (Her defense called only one other witness, a lawyer who'd taken notes at one of Stewart's interviews with the government, and only for about ten minutes). It's another thing to put on the stand every witness in the world except the mysteriously silent defendant.

(On the other hand, however, putting on five witnesses, while not personally taking the stand, seems to have worked for co-defendant Peter Bacanovic: The jury reportedly deliberated about the charges against him far longer than they deliberated about the charges against Stewart, and they did acquit him on one count.)

It might have behooved Stewart to testify and then to put on a much longer defense case. It would have been an uphill battle to try to get the judge to allow testimony that what Stewart did, with respect to the crucial stock trade, is business as usual on Wall Street. But if this testimony came in, it might have indicated to jurors that Stewart was being targeted, as a woman, for what overwhelmingly male brokers do routinely. And if the testimony was excluded, it could have been a strong ground for appeal.

(4) Conventional wisdom is that defendants without criminal records ought to testify.

Finally, one decent reason to put a defendant on the stand is that a lot of smart lawyers believe, based on experience, that this is the way to go unless the defendant already has a substantial criminal record.

The brilliant D.C. lawyer (and founder of Williams & Connolly, where I once worked) Edward Bennett Williams famously advised putting the defendant on the stand unless he or she has "a record as long as Long Island." Stewart had no record at all.

Except in rare cases like that of O.J. Simpson, who was able to win acquittal without testifying, it's probably best to follow Williams's sage advice. And Simpson's case was unique in that evidence allowed him to sidetrack the trial by raising the explosive issue of L.A.P.D. racism.

What were the cons of Stewart's testifying? In a nutshell, it would have raised a tremendous risk of criminal prosecution -- both for her, and even conceivably for Morvillo.

(1) Stewart's testifying would have risked a perjury charge for her.

Suppose Stewart had testified, and had insisted that she did nothing wrong -- just as she has recently suggested on her website. In the government's view, that would have been just another lie.

And that lie -- made under oath, in federal court -- could have led to a perjury charge, and a second trial. (It also could have led to a harsher sentence; as Mark Allenbaugh discussed in his prior column.)

Granted, most prosecutors don't usually tend to bring perjury changes. But remember, these prosecutors already had done so, in this very case -- against Stewart's co-defendant, Bacanovic.

And granted, most prosecutors don't tend, in particular, to bring perjury or false statements charges based on testimony such as "I don't recall". But not these prosecutors. Remember, the false statements charge against Stewart rested on just this kind of "failed memory" assertion.

(2) Stewart's testifying would have risked a "suborning perjury" charge for Morvillo.

There may have also been another dynamic at issue here, too: Morvillo might have told Stewart he could no longer represent her if she chose to take the stand.

Why? Because if Morvillo knowingly put Stewart on the stand to lie, he would have been suborning perjury. Both criminal law and lawyers' ethics prohibit that - but that's just what the Stewart prosecutors would doubtless have seen him as doing. So had Morvillo put Stewart on the stand, both his freedom and livelihood would have been at stake.

Granted, most prosecutors don't like to bring suborning perjury charges against fellow lawyers. And they are averse to this for good reason: Scaring attorneys out of putting their clients on the stand hardly vindicates the Sixth Amendment right to a fair trial. Moreover, there's already a decisionmaker to decide whether the person on the stand is lying -- and it's the jury, not the prosecutor (or some future perjury jury).

But if I were Morvillo, I would have still feared that putting Martha on the stand might expose me to the risk of a suborning perjury charge. Morvillo faced extremely zealous prosecutors who had filed a "creative case" -- a case that, as Jonna Spilbor argued in an earlier column for this site depended on a claim of insider trading, without actually charging the crime of insider trading. They had already been aggressive. I wouldn't have bet on any limit to their aggressiveness.

Meanwhile, Morvillo himself might have felt certain, in his heart, that at least some of Stewart's statements were lies. That is, he might have felt that not only might he be charged with suborning perjury if he put her on the stand, he might actually be suborning perjury.

For instance, Stewart's claim that she and her broker agreed to sell her stock if its price fell below $60 seems very likely to be a lie. And indeed, this seems to have been the jury's view.

Interestingly, instead of putting Stewart on the stand to say that the conversation happened, Morvillo, in his summation, commented carefully, "No one in this trial, including Doug Faneuil, has testified that the $60 conversation didn't take place." (Emphasis added.)

Whenever a lawyer uses a double negative like this, watch out: There's something else more straightforward that he didn't say, probably because he couldn't.

Again, I can't read Morvillo's mind, nor can I know the many conversations and considerations that doubtless went into framing this trial strategy. Nor am I at all suggesting Morvillo wrongly subsumed Stewart's interests to his own.

To the contrary, a lawyer ethically cannot knowingly put a lying client on the stand. It's the interest of justice -- not the lawyer's interest in own avoiding criminal charges -- that is at issue when "suborning perjury" charges are feared. Morvillo could properly take these interests into account.

The answer, in the end, turns primarily on how risk-averse the client, and the lawyer, are inclined to be. And Stewart was probably inclined to be a relatively risk-averse client.

Stewart plainly wanted to save her business, as well as herself. Perhaps she thought her business could survive one trial, but knew it would never survive two in a row - this trial, and then the perjury trial based on her testimony. Perhaps she thought she'd be acquitted easily, and there was no need for her to testify. Perhaps she simply didn't want to get up there, because it was humiliating.

Morvillo, for his part, might also have been risk-averse. He must have seen how zealous the prosecutors were. And he must have realized the evidence against Stewart was strong. ( After all, witnesses included one of Stewart's closest friends, Mariana Pasternak, and Stewart's assistant, who felt so guilty about testifying against her boss that she burst into tears. The prosecution wasn't exactly a parade of Stewart's nemeses; these witnesses were relatively credible ones.)

Perhaps Morvillo saw his role, in the end, as one of damage control: Even if Stewart were convicted, at least he wouldn't open the way to another criminal trial -- or a longer sentence based on the judge's considering her allegedly false testimony as "relevant conduct."

Under the circumstances, this strategy -- though a cautious one -- was also probably the most prudent path.