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Martha Stewart has characterized her pre-emptory move to prison as a form of business-as-usual: Clean up the mess quickly and get back to the good life of beautification and ad sales. But there’s always more than meets the delighted eye with Stewart. In this case, there’s a rather brilliant legal strategy hidden in the pattern, a booby trap set to spring on the prosecution. The business rationale goes like this: Since her conviction several months ago, advertisers have grown skittish as the company’s vitality seemed to ebb away. Under the best-case scenario, her appeal would be heard next year, she would win, and there would be a second trial. She might avoid jail, but her company would probably not survive. By nailing down a release date, Stewart stems the bleeding and provides badly needed stability to a company that has been reeling since her indictment more than two years ago. Not to mention the added advantage of knowing that she’ll be free for spring planting season. The legal rationale is less clear. Criminal defendants generally cling to the hope, however slim, that their conviction will be reversed before they have to surrender to begin serving time. Early arrivals at federal prison are rare. Stewart’s legal strategy, too, depends on winning her appeal and is therefore a long shot. But Stewart’s goal is much more ambitious: total vindication in the eyes of the law and the public. First, let us note that Stewart has raised issues on appeal that could result in a reversal for her, but not necessarily for her co-defendant, Peter Bacanovic. For example, she alone was initially charged in a creative stock fraud allegation in which prosecutors claimed that the protestations of innocence she made after the government’s investigation was made public were a thinly veiled attempt by Stewart to prop up the value of her company’s stock. That, and other appellate issues-which are unique to her-make it possible that she alone will be granted a new trial. A post-appeal dilemma If and when the appeals court has vacated her conviction, Stewart likely will have completed her entire term of confinement. This presents the government with a dilemma. If they proceed to retry her, they will once again expend enormous government resources in order . . . to do what, precisely? To restore a conviction and obtain a sentence that likely will be no more severe than the one already served? In this case, Stewart would receive a sentence of time served and the government’s case would be seen as a vindictive waste of the people’s resources. If they elect not to retry her, the likeliest outcome will be outright dismissal of all charges. Stewart would have no reason to plea to a reduced charge since she would have already served the prison time. She will emerge as a sort of martyr, having been jailed on charges that were ultimately dismissed. But this legal strategy also doubles as another business strategy. Beyond providing her with a measure of personal redemption, it could make Stewart eligible to return to the board of her cherished company. In any case, there is no escaping the fact that Stewart’s decision to begin serving a prison sentence voluntarily is a strange conclusion to a case that has been strange from beginning to end: A key government witness was indicted for perjury based upon his testimony at trial, and a juror was alleged to have lied about his criminal history. Nothing should surprise us now, least of all a uniquely Martha endgame strategy. Robert A. Mintz, a former federal prosecutor, heads the securities litigation and white-collar criminal defense practice at McCarter & English in Newark, N.J. He was a television network-news legal analyst during the Stewart trial.

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