The Dangers of Underestimating a Smart Jury:
Assessing The Defense In The Stewart Case, Part Two

In Part One of this two-part series of columns on Martha Stewart's defense strategy, I contended that, under the circumstances, her decision not to testify on her own behalf was a reasonable and probably correct one. I also argued that if Stewart's attorney, Robert Morvillo, had counseled her that it might be smarter not to testify, he too acted reasonably and probably correctly.

In this column, however, I will argue that three other decisions that seem to have been made by Morvillo were much less defensible. In particular, I will argue that Morvillo made mistakes in two respects in his summation, and that he also erred in allowing Stewart to have her celebrity friends visit the courtroom.

In the closing of Morvillo's summation, he implored the jury, "I ask you to acquit Martha Stewart. I ask you to let her return to her life and improve the quality of life for all of us. If you do that, it's a good thing."

This was the wrong kind of appeal. Jurors who were already Stewart fans didn't need to be pitched about how she "improve[s] the quality of life for us all." Meanwhile, for jurors who were slightly against Stewart, this phrasing may have tipped them over the edge. Stewart's stock trade hardly improved the quality of life for the investors who bought ImClone stock when Stewart sold it! And the jurors were plainly thinking about those investors; after the verdict was in, juror Chappell Hartridge called the conviction a victory for the "little guy" investor.

Another reason Morvillo should not have used this tactic was that the jurors were well aware that their mandate is narrow: Decide if the defendant violated the law. Whether the defendant is good at the homemaking arts is simply beside the point; equal justice means that a defendant gets treated fairly regardless of his or her occupation, skills, or lack thereof.

Morvillo's decision to use Stewart's mantra "it's a good thing" at the end of his summation was also, in my view, a miscall. The phrase was both too cutesy and too condescending to a group of what were probably sharp jurors.

Having been both a law clerk and a juror in the courthouse where Stewart was tried, I can vouch that the courthouse draws from a strong and generally conscientious jury pool. (Two of the jurors with whom I served had taken in foster children; several worked for the government. None had tried to get out of an onerous several-week trial, and all were careful in considering the plaintiff's case.)

Stewart's jury was no exception to this general rule. Her jurors deliberated for three days -- a marathon for the already exhausted. In addition, juror Hartridge said they looked carefully at the evidence, and I believe him: After all, the jury chose to acquit Peter Bacanovic on one charge -- of falsifying a document -- on which the evidence was especially equivocal.

With a jury like this, clever rhetoric doesn't play well; straight talk does. And Morvillo, who was once a top prosecutor in this very district, should have expected this.

For the same reason, I think Morvillo should have advised Stewart to tell celebrity friends like Rosie O'Donnell and Bill Cosby to stay away from the courtroom.

Granted, the presence of certain celebrities who are respected for being especially truthful or upstanding - such as, say, Walter Cronkite -- might have helped. But the presence of O'Donnell and Cosby probably did not. Indeed, in this particular courthouse, they were more like a rogues' gallery.

After all, this very District was home to extortion prosecution of Cosby's out-of-wedlock daughter, Autumn Jackson, who accused him of not being financially generous enough to her. News of an affair and an unhappy out-of-wedlock daughter hurt Cosby's image, and that news was all over the New York press.

Moreover, this very district was also home to O'Donnell's contentious civil suit against her magazine publisher. The New York press prominently featured the suit --- including evidence that O'Donnell taunted a cancer survivor that "[Y]ou know what happens to liars? They get cancer" -- as well as evidence that, even worse, she didn't admit to making the taunt in her under-oath deposition. (She did, however, admit to it on the stand at trial.)

While I don't intend to knock Cosby and O'Donnell for their behavior, I do mean to suggest that due to Cosby and O'Donnell's bad press, their presence was risky at best, and could have been damaging at worst.

This jury was asking for substance from the Stewart defense -- not glamour, and not rhetorical flair. In the end, Hartridge said the celebrities' presence had no effect. Indeed, "[i]f anything, we may have taken it a little as an insult," he said. "Is that supposed to sway our opinion?"

Jurors are supposed to focus on evidence, and that's what this jury did focus on.

The choices I've critiqued thus far all boil down to an underestimation of the jury. This jury was basically smarter and less malleable than the defense seems to have predicted.

In his summation, Morvillo also put forward another condescending argument: Stewart and Bacanovic were too smart, he suggested, to have concocted the "dumb" conspiracy the government had alleged.

Indeed, Morvillo argued that "[t]he government has accused Martha Stewart of participating in a confederacy of dunces, because nobody could have done what Peter Bacanovic and Martha Stewart are alleged to have done and done it in a dumber fashion." Morvillo implicitly asked the jury: How could people as "bright and accomplished" as Stewart and Bacanovic have been so stupid?

Think about jurors listening to this. Each juror has probably made stupid mistakes in his or her own life. Does that make the jurors stupid?

The implication: Either the jurors themselves - mistakes and all -- are just plain stupid, or else Morvillo's wrong, and smart people do make mistakes. Even Martha Stewart.

Guess which option the jury picked.