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When a judge last month denied a defense request to toss out two counts of the Martha Stewart indictment, few in the legal world were surprised. Her arguments, including the idea that her free speech right to defend herself trumps any possible attempt to manipulate the shares that bear her name, were unlikely to succeed. But perhaps her legal/public relations team was appealing to a different audience-the higher court of public opinion on which all potential jurors sit. That may explain why the failed briefs live on in the extraordinary Web site devoted to promoting her defense, www.marthatalks.com, where they are posted helpfully under “Setting the Record Straight.” Stewart’s strategy, since long before indictment, has been celebrity-centered. One theme repeatedly sounded, as in the recent Barbara Walters interview, claims unfair targeting by federal prosecutors because of her celebrity status. Obviously, prosecutors are aware that Stewart is no ordinary “perp,” but the larger question is whether it is appropriate for prosecutors to use their discretion to go after high-profile individuals. In fact, it happens all the time, and mostly with good reason. Carefully directed resources In the real world of limited public resources, prosecutors seek to get the most bang for the buck and nothing makes a bigger bang than the sound of a jail cell door slamming behind a once high-flying defendant. But there is also another, less public side of Stewart’s celebrity defense. While claiming victimhood in the press, her team has leveraged its public relations position behind the scenes to great advantage with the prosecution. Way back when the Securities and Exchange Commission insider trading probe began, Stewart’s lawyers played the celebrity-bashing card to convince the SEC to drop its usual demand that allegations be answered in a sworn deposition; she provided answers in an informal interview, on at least one occasion she even spoke to the SEC and the FBI by phone. If not for that successful power play, she could be facing perjury charges today. But without a transcript to document her allegedly false statements regarding her sale of ImClone Systems Inc. stock, jurors will never hear her exact words. In one of the earliest shots in their public relations offensive, Stewart’s attorneys explicitly asked the prosecution whether the case was brought for publicity purposes. A few days later, they accused the government of leaking the indictment early to the media. Besides grabbing headlines, these claims questioned the motives behind the prosecution, and put the government on trial. Conventional lawyerly wisdom has defendants making few appearances and speaking even less before trial. But few public personas have been more assiduously cultivated or successfully linked to a corporate image than that of Martha Stewart. It is clear that the public face on this defense will be all Stewart. Rather than let her lawyers do all the talking, she immediately took out a full-page ad in USA Today to deny the charges and established the Web site, allowing her to speak directly and frequently to the public. She gave a lengthy interview to the New Yorker, complete with lunch and a tour of her famous Connecticut house. And then came the 20/20 interview. The “targeting” of public figures is neither new nor necessarily inconsistent with justice and the social mission of law enforcement. Prosecutors must always consider both specific deterrence-punishment of the individual who committed the crime-and general deterrence (the sending of a signal to others who might contemplate committing a similar act). It is appropriate for prosecutors to consider the impact that a prosecution might have on a particular industry or segment of the populace in preventing future crimes. In this case, the government is using Stewart’s well-polished public image to send a message to others on Wall Street that, once a criminal investigation is launched, you had better not even consider destroying a document, dumping an e-mail, lying to investigators, getting others to lie on your behalf or tampering with evidence. In truth, federal prosecutors for years have pursued criminal cases against political figures more for who they were than for what they did. This approach deters others from breaching the public’s trust and can be worthwhile even if it concerns a minor offense. The same can be argued here. Those in positions of power in corporate America should be held to the highest standards of conduct to ensure public faith in the integrity of the marketplace. In the end, neither side will escape the impact of Stewart’s celebrity status and this case will inevitably be less about proofs and more about persona. The defense will need to convince the public and later a jury that its client is more victim than villain. For the government, it’s a case of no one being above the law. But for the jury it may wind up being mostly about Stewart, and that may be exactly what she is hoping for. Robert A. Mintz, a former federal prosecutor, heads the government investigations and white collar criminal defense practice at McCarter & English.

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