Monday, July 19, 2004

First of all, long time no post.  No big reason, I just haven't felt it of late.  
Martha Stewart
My prediction.  She could easily get her conviction reversed.  But, I have little sympathy for the big time white collar defendants.  The only reason I have any sympathy for her is that I think she was the victim of a Republican House of Rep inspired witch hunt done primarily to divert attention from Enron (remember, that's when they started going after her and Wachsel, another big-time Democrat, at the time when the heat was turning on to the folks at Enron, who are big-time Republicans).
To begin with, how can the prosecution come up with a case for perjury against the ink specialist (who testified that there was a different ink on the page that said "sell at 60" or something to that effect), requiring him to have told a lie that was MATERIAL at the same time as they say his lie did not affect the litigation enough to warrant a new trial?
Perhaps I'm missing something, but I just don't see it.  If his lie is material enough to the prosecution that they file on him, then it must have affected the litigation.  This smacks of working out of both sides of their mouth.
Next, it seems wrong that she and Bokanavic were tried together.  I didn't follow the trial all that much, but statements that one of them made to the investigators were used in the joint trial, even though neither took the stand and neither had the opportunity to cross-examine them while the statements were being used against them.  This is a classic example of Aranda/Bruton, where your co-defendant's statement is admitted even though it implicates you and you don't have a chance to cross-examine that person on the stand.  I don't remember the example exactly from the case, but there were a couple of examples of where one person's statement hurt the co-D.  Such situations require severance.
Lastly, anyone who wants to go and criticise public defenders remember this, her high priced lawyers let her speak with the investigators, and it was these lies that resulted in her conviction.  Not because she lied to them and it made her look dishonest over a larger issue, but the lies were the crime.  I know of very few public defenders who would let their clients speak to the government when there is a chance of being filed on.  To put it in the context we can relate to more, if the police want to come and talk to you about your claiming too high a deduction for donating your car on your taxes (you claimed retail and only should've, in light of your car's condition, claimed high wholesale, or $500 more), would you go and try and talk your way out of this one knowing that talking your way out could get you in prison for a few years?  Any lawyer who let you talk is crazy.
Who knows, perhaps she insisted, this is not unusual in cases where you have high profile defendants who are used to getting their way and wowing the public.  If that's the case, then she certainly got what she deserves just for defying her lawyers when they suggested she act otherwise.  It's about time our advice turns out to be correct.


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