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With Martha Stewart’s sentencing set for the near future, and years of appeals certain to come, we have yet to see the final chapter of her painful odyssey through the federal courts. But whatever the fates have in store, her trial surely had all the elements of an epic: a bold heroine with a tragic flaw, facing a powerful and implacable foe. Rather than accept an ignoble plea bargain, she risked personal destruction by defending her integrity and insisting on a trial. Just as honorably, the prosecutors accepted the challenge of overcoming Stewart’s seemingly invincible celebrity, which required them to prove her a liar and a cheat. The relative triviality of the charge — lying about a stock transaction that turned out to be perfectly legal — only added drama to the confrontation. Each side stood on principle; no one flinched. Why did Martha Stewart lose? What led to her downfall? How did the prosecutors identify and exploit her weaknesses? Given the classic nature of the encounter, it may not be entirely surprising that part of the answer may be found in ancient Homeric texts. Although the facts of the Stewart case were straightforward, prosecutors faced a daunting task. They had to prove that the popular, proper, elegant defendant had lied to the Federal Bureau of Investigation about the sale of a small amount of stock. As a media figure, however, Martha Stewart had built an international business empire by establishing a reputation for dependability. Hundreds of thousands — perhaps millions — of customers knew that they could trust Martha Stewart on matters of good taste and discernment. How, then, might it be possible to prove her a fraud? In the five-week trial, there would be only one witness who could provide direct evidence that Martha Stewart lied. Douglas Faneuil, a 28-year-old assistant stockbroker at Merrill Lynch, testified that he alerted Stewart to the impending decline of her stock in ImClone, and that she ordered him to sell her holdings on the basis of that tip. Stewart had denied those same facts in two interviews with investigators from the Securities and Exchange Commission, and that contradiction formed the basis of the case against her. Faneuil, however, had grave credibility problems. His admitted conduct — tipping off a client based on inside information — was far more serious than anything attributed to Martha Stewart, yet he was testifying under a plea bargain in which he was allowed to plead guilty only to a misdemeanor. Moreover, he had no way of controverting Stewart’s defense, that she actually sold the stock pursuant to a prearranged “sell order” with Faneuil’s boss, Peter Bacanovic. In a believability contest, the iconic Stewart started with a significant advantage over the callow Faneuil, and the prosecutors knew it. To win, the prosecution had to confront the central dilemma in all litigation. Communication is basically verbal, but comprehension is essentially visual. A witness must describe an event in words, but jurors make sense of the testimony by reimagining the events in their “mind’s eye.” It would not be enough to tell the jurors that Martha Stewart lied about her conversation with Faneuil. They had to be able to see her talking on the phone with the young man, nodding as he explained the imminent decline in ImClone’s share price, giving him the fatal instruction, and then betraying her hard-won persona by brazenly lying to investigators from the SEC. Without visualization, there could be no conviction. The prosecutors had to re-create Martha Stewart’s image, changing her from a perfectionist homemaking maven to a greedy liar, and they had to do it through the secondhand description of events that the jury would never see. This is a familiar task for trial lawyers. It is also the work of storytellers and poets (as well as novelists, journalists and historians), who use artful language to create a shared understanding of the past, whether remote or recent. And this brings us to Homer. Think of the Trojan War, an epic conflict that still holds a place in the popular imagination (and lately a motion picture starring Orlando Bloom and Brad Pitt). Nearly every image we have from that heroic age — the Greek armies massed on the beach, the towers of Troy, the matchless beauty of Helen, the glint of Achilles’ shield — derives from the poetry of Homer, who never saw the events he described. So vivid are Homer’s descriptions, in fact, that many scholars believe that his blindness is only a legend. But even if he could see, the Trojan War occurred many centuries before his birth, in a land he never visited. Nonetheless, his words still have a strong visual impact after 2,800 years. The blind poet’s tools included similes, as in this description of the Greek army on the move: As ravening fire rips through the stands of timber high on a mountain ridge and the blaze flares miles away, so from the marching troops the blaze of bronze armor, splendid and superhuman, flared across the earth, flashing into the air to hit the skies. He continued, joining simile to metaphor, The armies massing � crowding thick-and-fast as the swarms of flies seething over the shepherds’ stalls in the first spring days when the buckets flood with milk – so many long-haired Achaeans swarmed across the plain to confront the Trojans, fired to smash their lines. Even today, when few have ever seen a shepherd’s stall or buckets flooded with milk, we are able to comprehend the impressive might of the Greek army, whose bronze armor lit the heavens. But allusion is not the only way to make a point. When it came to the carnage of the battle, Homer often switched to close description, as when Achilles killed a nameless Trojan: Just as he shot past the matchless runner Achilles speared him square in the back where his war-belt clasped, straight on through went the point and out the navel, down on his knees he dropped– screaming shrill as the world went black before him– clutched his bowels to his body, hunched and sank. Now the mental image is nearly indelible. We cannot avoid thinking about the fleeing Trojan runner, frantically grabbing at his own intestines as he doubles over and falls to the ground. Of course, there was nothing so gripping or graphic in the Martha Stewart trial, and the prosecutors hardly aspired to Homeric verse, but they did make use of some of the same concepts to build their case. Most significantly, they repeatedly called upon witnesses to describe Stewart’s venal side — depicting her as demanding, egotistical and self-centered — so that the jurors could envision her as exactly the sort of person who would eagerly take advantage of an inside tip and then arrogantly attempt to conceal the deed. They played a tape-recorded interview with Bacanovic in which he described his most important client as “someone who gets irascible” about her portfolio, and they introduced an e-mail in which she threatened to withdraw her account and “give my money to a professional money manager who will watch it when I am too busy.” Most significantly, the prosecutors repeatedly illustrated their case with revealing vignettes, including a description of Martha Stewart and Peter Bacanovic posing for a photograph in pink and blue bathrobes. After that, it would be significantly easier for the jury to imagine that Stewart and Bacanovic had a relationship that went beyond stockbroking — one in which they might conspire to dump stock and cover up the details. In response, the defense painted a picture of, well, nothing. As Jeffrey Toobin observed in the pages of The New Yorker, in the entire five-week trial, the defense offered only about three sentences that stressed Stewart’s good deeds and accomplishments. Stewart did not testify in her own behalf, and her lawyer produced only one witness on a relatively minor point. Now, there are many good reasons for keeping a defendant off the stand, and Stewart’s attorneys can no doubt provide an excellent explanation of their strategy. The cost of silence, however, can be enormous, leaving the jury with a strong visual impression of guilt, but with no way to envision an “innocence” story. The best trial lawyers, in their own way, are all blind poets, relying primarily on words to convey the reality of events and situations that neither they nor the jury have ever actually observed. It is ironic that Martha Stewart, who built a luminous career on her polished image, ended up leaving the jury in the dark. She might have looked at the first sentence of Homer’s Iliad for some better advice: Sing, O muse. Steven Lubet is a professor of law at Northwestern University. His most recent book is “Nothing But the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.” He can be reached at [email protected].

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