NEW YORK (AP) – Standing outside the courthouse after receiving a five-month prison sentence, Martha Stewart pleaded with the public to support her by buying her magazine and her company’s products.
Now she faces a much tougher sales pitch – convincing a federal appeals court to overturn her conviction.
It will not be easy. Appeals courts are highly wary of tossing out jury verdicts, and legal experts say a decision by the trial judge earlier this month puts the Stewart defense team at an even greater disadvantage.
“She has very, very slim chances on appeal,” said Thomas Ajamie, a Houston attorney specializing in securities law. “I’d say a 5 percent chance or less.”
Lawyers for the homemaking guru plan to argue that a series of unusual events – from a securities-fraud charge that some scholars called unprecedented to the alleged lies of an ink expert on the witness stand – tainted her trial.
“Individually, each of these represents a serious issue,” said Walter Dellinger, the lawyer leading the appeal. “Cumulatively and collectively, I think they make a very strong case that this wasn’t a fair trial.”
The judge allowed Stewart to remain free while she appeals her conviction – a process expected to take months.
Stewart hired Dellinger, a 63-year-old Duke University law professor who argued cases before the Supreme Court for the Clinton administration as acting solicitor general in the mid-1990s, specifically for the appeal.
Stewart was convicted of lying to investigators about the ImClone sale, and alleged lies by others are expected to form the heart of the appeal.
The defense will argue that government officials knew for weeks about alleged lies told on the witness stand by Larry Stewart, a Secret Service ink expert, before bringing perjury charges against him.
And they will repeat allegations that Chappell Hartridge, a juror, was so determined to get on the jury that he lied on his jury questionnaire about a prior arrest on a charge of assaulting his girlfriend.
Dellinger, speaking to reporters Friday after the sentencing, called it a “gender-based arrest” – playing on the defense’s public suggestions that prosecutors targeted Stewart because she is a powerful woman.
Complicating Stewart’s task is a decision issued earlier this month by Judge Miriam Goldman Cedarbaum, who presided over Stewart’s trial and issued the five-month prison sentence.
The decision denied a defense request for a new trial based on the Larry Stewart perjury charges – but Cedarbaum packed the document with page after page recounting the damaging trial testimony against Martha Stewart.
“Overwhelming independent evidence supports the verdict,” the judge wrote.
Some legal experts believe Cedarbaum wrote the opinion almost as a pre-emptive safeguard against an appeal to overturn the jury verdict.
“She’s a solid judge, and her opinions were extensive and well-reasoned,” said Timothy Hoeffner, a Philadelphia white-collar attorney at the law firm Saul Ewing. “She knows that her opinions will be subjected to extreme scrutiny.”
Dellinger said the appeal will also argue that prosecutors were improperly allowed to imply to jurors during the trial that Stewart was accused of insider trading.
Stewart was never charged with knowing about the coming bad news that would send ImClone stock plunging. She was accused only of selling the stock because she was told that ImClone CEO Sam Waksal was trying to sell.
But federal prosecutors said repeatedly during the trial that Stewart received a “secret tip.”
The appeal will also argue that the trial was tainted by a securities fraud charge that was only dismissed just before the case went to the jury.
In that count – which the judge herself called a “novel” application of the law – Stewart was accused of propping up the stock price of her company, Martha Stewart Living Omnimedia, by proclaiming her innocence in the ImClone scandal.
Cedarbaum said she would allow Stewart to go free pending appeal because of the “turmoil” resulting from a Supreme Court decision in June that said Washington state judges could not impose sentences harsher than state guidelines based on information not presented to a jury.
While that decision focused on judges who impose sentences above the guidelines – Cedarbaum sentenced Stewart at the bottom of the range – it raised questions about whether the U.S. Supreme Court will eventually throw out the federal sentencing guidelines system.
AP-ES-07-17-04 1454EDT
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