One of the more engrossing and amusing moments in the Martha Stewart trial-a spectacle that has produced precious little comic relief thusfar-occurred over a simple dash. The dash in question appeared on the same sheet of paper listing Ms. Stewart’s bountiful stock portfolio as the infamous notation “@60,” which had been penned beside the entry for ImClone Systems.
The “@60″ notation is significant, as those who have been following the trial-whether in The Wall Street Journal or the National Enquirer -know, because Ms. Stewart and her stock broker and co-defendant, Peter Bacanovic, claim that it proves they had a pre-existing agreement to sell her ImClone shares if they fell below that price.
The government, on the other hand, contends that the $60 selling price was just a convenient alibi to cover up the fact that Mr. Bacanovic tipped off his most valuable client and friend to dump her shares after he got word that another client, Sam Waksal, the founder of ImClone, was doing the same. To prove it, on Feb. 19 they brought to the stand one Larry Stewart, the chief forensic scientist for the U.S. Secret Service and, by his own modest admission, “the national expert on ink of all things.”
“How many national experts are there?” prosecutor William Burck inquired.
“Just one,” Mr. Stewart answered.
What made his testimony noteworthy (besides the quasi-psychedelic quality of the ink blots he brought along) is that the impervious self-confidence with which he presented his analysis-and the doubt that was later cast upon that evidence-might just remind the jury of another ongoing conflict involving the government and questionable intelligence.
Mr. Stewart, who is no relation to the defendant, testified that even though he couldn’t say when the “@60″ was placed on the stock sheet, it definitely was made with different ink than the other notations on the page. As evidence, the government produced the results of a test using infrared analysis, which showed the “@60″ glowing a ghostly white while all the other entries on the page-made with a Paper Mate pen, the expert testified-remained their original dark color.
The proof seemed irrefutable. It was as if the electromagnetic spectrum was siding with the Justice Department. That is, until one of Mr. Bacanovic’s lawyers, Richard Strassberg, rose to cross-examine the ink maven.
Neither Mr. Strassberg nor David Apfel, Mr. Bacanovic’s other lawyer, can be said to have a winning personality, let alone the courtroom charisma of a John Edwards or a David Boies. But it was hard not to root for Mr. Bacanovic, watching stoically from the defense table. While it’s wrong to lie or forge a document (if, indeed, he did), one suspects that Mr. Bacanovic never guessed he might one day find himself facing off against the nation’s leading ink expert before a courtroom filled with 40 or so reporters, with half a dozen satellite trucks idling outside.
Indeed, Mr. Bacanovic’s worst offense may have been one for which he hasn’t been charged-naïveté. He simply grossly underestimated the media’s appetite to watch a celebrity turn on a spit, and the government’s ability to indulge them-with all the fixings.
Mr. Strassberg directed Mr. Stewart’s attention to a dash, which had been penned on a distant part of the stock sheet from the “@60″ notation. By golly, it also seemed to be glowing that same ghostly white! Under cross-examination, Mr. Stewart admitted that even though he tested the dash against the dark-colored Paper Mate entries on the page to ascertain whether they had been made from the same ink, he never did so against the “@60.” Logic, let alone natural curiosity, suggests that he should have done so first.
Mr. Stewart’s explanation was that after both he and the defense got through with all their other tests, there simply wasn’t enough ink left in that poor, beleaguered dash to do so.
Furthermore, despite his boasting that the government owns one of the world’s most comprehensive collections of ink, he had to concede that their repository did not include the ink in the pen that produced the “@60″; it was a twist of fate that Mr. Stewart described as “unusual,” and one that he attributed to the possibility that the ink was of “foreign” manufacture.
If the government expert wanted some help in solving the mystery of the ink’s provenance, he might have consulted a previous witness, Douglas Faneuil. Mr. Faneuil had testified earlier that Mr. Bacanovic, his boss at Merrill Lynch, was partial to pens of the Mont Blanc sort.
In the end, the dash may have been nothing more than a masterful distraction-up there with Johnnie Cochran’s “If the glove don’t fit, you must acquit” chant-but Mr. Strassberg so animated the humble little mark that you almost thought it might have the talent to leap off the page and testify on its own behalf. Indeed, the absurdity of the investigation reminded one of that scene in Woody Allen’s Sleeper when a team of surgeons valiantly attempts to clone their dead leader from all that remains of him-his nose.
Even though it amounted to gilding the lily, after Mr. Strassberg’s able cross-examination the defense’s own ink expert, Albert Lyter, testified on Feb. 23 that though the “@60″ and the dash were made of the same ink, his experiments suggested the other 32 or so marks on the page were made with at least two-and possibly far more-pens. To prove it, he produced his own charts and graphs, more blue and violet blobs, and the results of a machine called a densitometer. No one has yet bothered to ask, “So what?”
Until the jury comes back with its verdict, we won’t know how much weight they assigned to the dash, but the episode shines light on what may be Ms. Stewart’s and Mr. Bacanovic’s best hope of winning acquittal, since some of the testimony against them seems pretty damning: rising election-year suspicions about the government’s competence, let alone its integrity.
In fact, both the prosecution and the defense attempted to tap into the Zeitgeist in their opening statements. Karen Patton Seymour, the government’s lead prosecutor, invoking the spirit of Enron, told the jury that the case was essentially about taking back democracy on behalf of the little guy who doesn’t have access to inside stock tips. Ms. Seymour not once but several times mentioned the private jet on which Ms. Stewart was traveling to Mexico at the time she gave the order to dump her ImClone shares.
In his opening statement, Ms. Stewart’s lawyer, Robert Morvillo-who one suspects wasn’t selected just for his legal skills, but also because of his portly everyman demeanor (indeed, he bears a passing resemblance to Lou Costello)-described the prosecution of his high-profile client as nothing less than an assault on liberty “brought to us by the United States Department of Justice, headed by John Ashcroft.”
Perhaps tellingly, neither the members of the prosecution or the defense sport those little American flag pins that shone forth from every lapel during the government’s prosecution of former Sotheby’s honcho Alfred Taubman, which occurred only a few months after the attacks of 9/11. That fact alone may suggest how much good will the Bush administration has squandered in the meantime.
Certainly Ms. Stewart had better hope that the jury-eight women and four men, several of them minorities-is composed of people who have recurring John Ashcroft nightmares, because she’s given them little reason to feel sympathetic toward her, both through her dour courtroom demeanor (she’s the one sporting a frown when everyone else is laughing during occasional moments of levity) and because those who have testified so far, be they friend or foe, have hardly painted her as warm and fuzzy.
Her most powerful character witness may have been Ann Armstrong, her secretary, who broke down in sobs when recalling the plum pudding her boss gave her for Christmas. (Am I the only one who detected shades of Scrooge and Bob Cratchit here?) Ms. Armstrong, whose rather shaky personality makes one wonder what Ms. Stewart is seeking in a personal assistant, served up perhaps the government’s most damaging piece of evidence: that her boss sat down at her computer, changed a telephone message that read “Peter Bacanovic thinks ImClone is going to start trading downward” to “Peter Bacanovic re Imclone,” then almost immediately told her to change it back-in essence acknowledging that she knew she was committing a crime. Ms. Armstrong further testified that she even polished the punctuation on Ms. Stewart’s revision.
Ms. Stewart’s Connecticut business manager, Heidi DeLuca, was also helpful to the defense, testifying that Mr. Bacanovic mentioned to her in November 2001 that he had discussed with Ms. Stewart whether to set a price at which he’d sell her ImClone shares. It was a seeming victory for the defense-until the government picked her story apart during its Feb. 24 cross-examination.
While some of Martha Stewart’s rich and famous friends have showed up in the courtroom to lend their support-among them Rosie O’Donnell, Bill Cosby and the art dealer Richard Feigen-the one who testified was Mariana Pasternak, a real-estate broker and friend of 20 years who’d flown down to Mexico with her. During her first day on the stand, Ms. Pasternak recalled that Ms. Stewart had said to her, “Isn’t it nice to have brokers who tell you those things?”-referring to Mr. Bacanovic and his ImClone information.
However, under cross-examination by Mr. Morvillo, Ms. Pasternak couldn’t remember when,where or even whether Ms. Stewart had actually said the words to her, or whether Ms. Pasternak had simply thought them herself. Apart from the reliability of her memory, her malleability might make an inquiring juror wonder not just how the domineering Ms. Stewart chooses her assistants, but also her friends.
By contrast, Ms. Stewart’s foes-most prominently Mr. Faneuil, who was manning the phones the morning of Dec. 27, 2001, while his boss was off on Christmas vacation in Florida and Sam Waksal’s family started dumping their ImClone shares-came across as far more capable. If Mr. Faneuil’s testimony was the most compelling of the trial, it was almost less because of the breathless way he recounted the events of that now-famous day and the following weeks-when, he alleges, Mr. Bacanovic bullied him into silence over what really happened-than because he provided the jury an engaging, proactive personality.
Tellingly, the government rested its case after calling to the stand two friends of Mr. Faneuil-Zeva Bellel, a friend from Vassar College, and Eden Werring, who runs a nonprofit-as if to remind the jury one more time of his testimony. Both young women testified to the fear and stress that Mr. Faneuil felt and shared with them over his role in the unfolding drama as both Merrill Lynch and the S.E.C. were putting the squeeze on him, and long before he cut a deal with the government to testify in exchange for leniency.
While Ms. Bellel, who said she grew up in Brooklyn, may be guilty of pretentiousness-after living in Paris for only three years, she has a fairly thick French accent-she, like Mr. Faneuil, spoke with precision and came across as eminently unconfused; unlike Ms. Pasternak, they remembered what they remembered.
Their testimony may ultimately prove all the more potent because their presence on the witness stand made the government feel softer, less threatening, even youth-oriented. With only witnesses like ink expert Larry Stewart on the stand or Ms. Stewart’s tremulous friends and co-workers, she and her co-defendant seem less prosecuted than persecuted. As one civilian said of Mr. Bacanovic’s alleged crime, “I thought that’s what stockbrokers are supposed to do-tell you when to sell your shares. If not, you might as well go to E-Trade and save the commission.”
Ms. Stewart’s and Mr. Bacanovic’s best defense may be to just sit tight. Left to its own devices, the government may succeed in doing what the defendant has failed to do over the course of her remarkable career (perhaps most remarkable in that she’s managed to become a national icon without ever passing minimal likability standards for celebrities): The government just might unwittingly turn her into a sympathetic figure.