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It’s tough to be a celebrity. It’s especially tough when you are a high-profile white-collar criminal defendant. Just ask Martha Stewart: all those microphones in your face, all those pundits on MSNBC and Fox scrutinizing your every move, all those jurors who think they actually know you, and worst of all, all those prosecutors who have singled you out, just to make an example of you. It’s enough to wipe the carefully cultivated smile off a celebrity’s face. But before Stewart or any other high-profile criminal defendant ventures any further down the path of righteous indignation, they should remember the countless benefits they have derived from that same accursed fame. Lawyers for high-profile defendants, too, should never let a client’s fame cloud their judgment when making a decision to take a case to trial. In my opinion, there’s little question that the prosecutors in the Stewart case singled out the goddess of fine living. Prosecutors make decisions all the time about which cases to pursue. Any number of factors goes into that decision, and the message the case sends to the general public is but one of those factors. The prosecution in the Stewart case wanted to send a strong message, a message of utmost importance at a time when corporate scandals have wrecked consumer confidence in the economy: The law enforcement and judicial processes rely on people telling them the truth. They can’t make their case if people aren’t honest with them. If you don’t cooperate, if you lie, then you’ll face the consequences, even if you’re perfectly matched Martha Stewart. It’s not good enough for Stewart to lament that she’s being singled out because she’s famous. “A lot of other people did what I did, or worse,” she seems to be saying, “and they didn’t get indicted.” But that misses the point. A lot of people speed, but not everyone gets caught. When an officer does stop a car, and the speed shows up on the radar gun as clear as day, it’s not a defense to say, “Yeah, but 10 other people zipped by me and you didn’t stop them. “ Stewart and other famous defendants also must be honest about the incredible benefits they enjoy as celebrities: the best tables at the best restaurants, the adulation, the recognition, the ego stroking, the requests for autographs and, of course, all that free stuff. Though they might not want to admit it, they also benefit as celebrities when they stand trial. The prosecution, knowing the press and the people will scrutinize each new development, has to make sure its case is ironclad. If it’s not, the media will have the prosecution’s head. In essence, celebrities benefit from a higher burden of proof. Representing a Celebrity Knowing the press and public will heavily scrutinize their case might lead some celebrities to hire a lawyer who is all public relations and no Perry Mason. Being media-savvy helps, but what really matters is for the attorney to be a rock-solid trial lawyer. It’s as much of a mistake for the lawyer to treat the case any differently from any other criminal matter. Lawyers will never win or lose the case in the media. At the end of the day, what matters is who was sitting in the witness box and what documents and exhibits were tagged as evidence. Both lawyer and client would do well to remember that odds are the government will win. This has nothing to do with being famous; it’s just a fact. The celebrity may have beaten all the odds while climbing to the top, but he or she should never count on that same golden touch when a jury sits in judgment. For example, the evidence in Stewart’s trial was damning. Add to that the fact that the high priestess of housekeeping did not testify. Defendants in white-collar cases usually do testify, though not always. There may have been plenty of legitimate reasons not to have her testify � she may not have been a good witness, she may not have wanted to say publicly that she’d lied � but it’s hard to second-guess trial tactics. Without her testimony, though, the jury was left to draw its own conclusions about how that decision did or didn’t match up with their preconceived notions of what kind of person Stewart is. A strong argument exists, then, for celebrities who face compelling facts to do what 90 percent of those charged do: take a plea. Clients tend to seek vindication or to be “completely exonerated,” as Martha Stewart has vowed, so they see a plea deal as a defeat. But the mistake they and presumably their lawyers make is to weigh a plea deal against the possibility of acquittal, when they should weigh the deal against a possible conviction, which would be far worse. Also, if a celebrity thinks an acquittal brings vindication, have her sit down for a one-on-one with O.J. Simpson. When a celebrity defendant goes to trial, he or she exercises a constitutionally guaranteed right. But in going to trial, the celeb gives up the freedom to manage how the case progresses. In a plea, the government will insist on certain admissions and/or stipulations, but the defendant’s lawyer can still negotiate terms much more preferable than the near-certain jail time the celebrity client faces if convicted. Perhaps Stewart’s fame blinded her to the realities of criminal prosecutions. The luxurious trappings of celebrity should never divert the focus of a famous person’s attorney from the sparse realities of criminal prosecution. It’s the job of the lawyer to know the difference. Tom Melsheimer, a former assistant U.S. attorney in Dallas, is now the managing principal in the Dallas office of Fish & Richardson, a national complex litigation, corporate and intellectual property firm.

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