This Media Life

Which Martha?

There isn’t a smoking gun.

It’s a circumstantial case, the defense reminds the jury. It’s the $60 question. Had Martha instructed Bacanovic, her broker, to sell ImClone when it hit $60? And what was the nature of the sell order, the circumstances? If not quite a standing sell order, was there at least some plausible direction she’d given Bacanovic? Were there reasonable and legal circumstances that justified the sale of her 4,000 ImClone shares (after all, she’d already unloaded 50,000 shares of ImClone, which no one is faulting her for) when the price started to drop precipitously on December 27? Indeed, so what if she learned—standing on the tarmac of the San Antonio airport on her way to Mexico (“A weary Martha Stewart,” according to the defense narrative, “starts on a well-deserved vacation”)—that Sam Waksal and his family are wildly selling their shares (the day “Sam went crazy,” in the defense narrative)? She was just exercising the God-given right of a free woman to sell her securities as planned.

Conspiracy? Obstruction of justice? Securities fraud? Making false statements? Pshaw, says Morvillo (the comb-over does make him seem more believable). Let’s be serious—if Martha and Peter wanted to make it up, they would have done a better job of making it up!

In other words, this trial is going to be about storytelling. About character and motivation, and about who’s throughline is stronger. Certainly, from the outset, the defense has upset the prosecution’s story line. By day three, the schedule of the trial is already in doubt, and the testimony of the government’s main witness—Bacanovic’s assistant, Doug Faneuil—is waylaid by defense charges that the prosecution had failed to provide the defense with “exculpatory” evidence.

“There’s no sense of grandiosity or flippancy or Michael-Jackson-ness about Martha—quite the opposite.”

Faneuil’s initial lawyer, an 80-year-old, appeared to have said in a statement to FBI investigators that Faneuil couldn’t remember if Bacanovic or one of the Waksals had told him to tell Martha that the Waksals were selling; but later in the same statement, it seemed that it was the lawyer himself who couldn’t remember what Faneuil had said.

This seemed to be an easy-to-resolve ambiguity, rather than anything that was going to exculpate anybody. But it stalled the trial and, by the third day, the government was clearly on the defensive.

And then there was Faneuil himself waiting in the wings. Everything was pointing to a takedown of the 28-year-old broker’s assistant—to an attack on his narrative reliability. Faneuil, who had already pleaded to a lesser charge (“an admitted liar,” in other words), was likely the most powerful part of the government’s case. He had passed the word to Martha about the Waksals’ selling their shares. He had been the main participant in the cover-up with Bacanovic. Without him, there might not be a case. Which was why the defense was going to throw everything at him. There was the prospect of drug tales (the defense was moving to get this chain of questions in) and gossip from the demimonde to impeach his credibility. There was talk of psychiatrists and other doctors; and the specter of Faneuil’s unnatural infatuation with Martha herself. And we had already learned—elicited by the defense from the government’s Merrill Lynch (where Bacanovic and Faneuil worked) compliance-department witness—that Faneuil wasn’t licensed to do the transaction he had done for Martha (indeed, although Merrill apparently had never told Martha this, because Faneuil wasn’t properly licensed, Martha would have had—perhaps still does have—the right to undo the transaction that has gotten her into this trouble).

On such equivocal issues would this tale of financial this-and-that (and of such small sums) turn—and, from the start, that story hardly seemed to be holding the jury’s (or anyone’s) attention. The other story, everybody understood, was the delicious one (you had to tolerate the boring stuff to get to the good part). Martha is bad; a rich bitch; a greedy, uncontrollably greedy, user. Or, Martha is good (“Martha has devoted most of her life to improving the quality of life for others,” the defense not-so-realistically argued), or at least not so bad; a woman who has done what it’s been necessary to do; a woman who has competed so well she would never do so ineptly what she is accused of doing; a woman who is so rich there would be no need to do what she is accused of doing.

Now, much has been made of the jury’s being mostly women (even Judge Cedarbaum proudly took note of this from the bench), and largely working women of some minor professional status. But out of some interesting deference (or because the initial reports on the jury selection, out of sight of the press, were based on transcripts), the press has mostly not pointed out that the jury and alternate pool is largely black. No big surprise then that the defense has reminded this jury that it is John Ashcroft’s Justice Department that is after Martha.

But how does a black jury judge a woman who is perhaps the leading symbol of whiteness—Connecticut white, preppy white, cold-fish white, imperious white—in the nation? And yet, the meaning of Martha is hardly fixed. There is no one axis on which she’ll be judged. No, likely, absolute standard. No strict good girl–bad girl. No simple black-and-white bias. Good marketing isn’t like that.