Feature

Can This Man Save Martha?

Perhaps Morvillo could have picked more flattering company for Stewart. But then, she hasn’t caught many breaks lately.

“All of the briefs are excellent,” Judge Miriam Cedarbaum says in a grandmotherly singsong voice. “They are so clear and comprehensive that no oral argument is necessary.” Good writing carries a man only so far, though: On this mid-November morning, Cedarbaum rejects Morvillo’s motion to dismiss five counts of the indictment against Stewart.

Days later, over pasta at Torre di Pisa, Morvillo points out a potentially good sign from the hearing: While Cedarbaum didn’t drop the charge that Stewart’s public declaration of innocence constitutes securities fraud, she did adopt Morvillo’s description of the charge as “novel.” “We thought that was significant,” Morvillo says.

He’ll need to score much bigger points next month. The conventional wisdom is that the case will come down to Stewart’s word against Faneuil’s. But the defense may try to push the focus in a different direction, highlighting the activities of Faneuil and Bacanovic in January 2002, after the federal investigation began and the alleged cover-up was launched. Morvillo will also emphasize the notion that Stewart’s right to free speech is being wrongfully criminalized. And when the government cites Stewart’s acumen, and her seven years as a stockbroker, as reasons she should have known her ImClone sale was illegal, Morvillo will parry: “If she really is that smart, why would she risk a billion-dollar company by engaging in a $40,000 transaction?”

Arguing the material evidence might be trickier. Bacanovic has claimed that on December 20, 2001, he wrote a note recording Stewart’s desire to sell ImClone if the stock price dropped to $60; the crucial scribbling, however, seems to be in a different ink than the rest of the document. Stewart has said she spoke to Bacanovic about ImClone just once after December 28; the Feds will likely counter with phone records showing multiple calls.

Then there’s the matter of an altered phone-message log in Stewart’s office computer. The indictment alleges that on January 31, four days before Stewart was scheduled to be interviewed by prosecutors, she neutered her assistant’s version of Bacanovic’s December 27 call, changing the computer note from “Peter Bacanovic thinks ImClone is going to start trading downward” to “Peter Bacanovic re imclone.” The assistant restored the original wording, apparently at Stewart’s behest, but the back-and-forth will be hard to explain away.

“This is a very tough case for Morvillo,” says veteran New York defense lawyer Peter E. Quijano. “The government doesn’t just have a rat, it doesn’t just have the inference from a series of events, it doesn’t just have some scientific evidence—it has each one supporting the other. Morvillo grew up in the federal world, and he knows exactly how the government will come after him. But he’s gonna need an incredible amount of finesse.”

The maneuvering is well under way. Morvillo, who rarely uses a jury consultant, has one onboard this time and is combing through poll results to understand who likes Martha and who hates her. “Most clients can’t afford a jury consultant, because it’s very, very expensive,” he says. “In this kind of case, where you have a client with a fair amount of money, and you have the ability to get public reaction to the client or the problem itself, I think they’re very useful.” He’s also been involved in decisions about Stewart’s pretrial PR campaign, including her Martha Talks Website and her Barbara Walters interview. “To the extent you can do constructive things to help the image of your client or help the jury pool understand your position—or even, God forbid, be biased for you rather than against you—sure, that’s great,” Morvillo says. “So you think about those things you can do within the rules.” The Walters interview was useful for a second reason: as a high-pressure rehearsal for Stewart’s possible appearance on the witness stand.

Not long after she hired him, Stewart treated Morvillo to dinner at Café Boulud. “To get to know each other a little better,” Stewart says. “I took another one of my attorneys, Allen Grubman, along with me, because I trust Allen’s intuitive nature, and Allen doesn’t do criminal law, so I wanted to hear what he had to say, too. During dinner, I asked Bob, ‘How many of your clients do you see after a case is done?’ And he thought for a very short period of time, and he said, ‘About maybe 5 percent.’ And I said, ‘Well, why?’ And he said, ‘Well, frankly, I represent people at the worst time in their life. And win or lose or draw, people don’t want to see me afterward.’ And I thought that was the most honest, nicest possible answer a person could give me in this situation. And I guarantee you I will be seeing Bob Morvillo after the case.”

Morvillo appreciates the sentiment; he’s grown fond of Stewart. But 40 years in the law has made him a realist. “This is a win-or-lose business,” he says. “If you win, even if the client doesn’t like you too much, the client is more tolerant.” And no matter how tight their pretrial bond, Morvillo knows that Martha Stewart will be a whole lot less thrilled to talk to him if she’s calling from prison.