So far, the Martha spectacle is, as spectacles go, a disappointment. It’s more kaffeeklatsch among the reporters arriving at 8:30 to claim their seats than circus. The daily proceedings, particularly the march of Merrill Lynch compliance officers—before the arrival of the government’s key witness, broker’s assistant Doug Faneuil—have been pretty nearly excruciating. The mundanity and claustrophobia of the show, and the puniness of the issues at hand, may well favor Martha. (A high point of mundane awe is to see Martha use the bathroom in the hall outside the courtroom.) She’s reduced to our size.
The snow day, on the second day of the trial, certainly contributed to the sense that the trial is school and something to escape.
And then, because the prosecution fumbled or concealed documents, getting Faneuil, its star, bumped from his pivotal place in the narrative lineup, the case was front-loaded with the humdrum and technical.
There is, too, the ten o’clock start time each day (Judge Miriam Cedarbaum comes in from Westchester), which gives the proceedings a not-too-urgent, almost sleepy feel.
But most of all, there has been, I think, a certain media enthusiasm about the prosecution of one of its own that engendered a misperception about what makes a spectacular trial. The tough fact may be that it’s very hard to have a helluva show trial when you don’t have television in the courtroom. Without the trial occurring in real time—at least mediawise real time—the expected frenzy has very quickly turned quite sedate and even a bit morose. We’re cooped up here with no way out (the court staff takes your cell phone, so you really feel apart from the world). We’re not at the center of anything. (Contributing to the lost-in-time sense, Judge Cedarbaum, examining the issue of Faneuil’s drug use, refused to accept the idea that the word wasted was a common usage related to drugs, and Martha’s lawyer, Robert Morvillo, referred to “marijuana cigarettes.”)
The public gets a snippet of an interview on the courthouse steps (most often, reporters interviewing other reporters) and a passing shot of Martha (or of Martha passing), but mostly there just aren’t many visuals. People who want to follow the trial have to get the news in the papers the next day (and because they have to read about the trial to follow it, probably a lot fewer people are actually following it). Interest degrades. She’s not just a tragic figure—her grimness, her deep gloom, becomes more obvious as the trial progresses—she’s almost old news.
The other factor that makes this show trial none too showy goes to the heart of matter: It’s a boring financial trial (“I usually do murder and rape,” Dominick Dunne said, as we both left early one day). It’s a trial about documents. Computer printouts—with witnesses describing what the documents say. It turns on the most minor points of security-compliance procedures. And, going to a big problem in the government’s case, it’s all about a small bit of money: 4,000 shares of stock. This isn’t Michael Milken and the systemic subversion of corporate finance. It’s, at worst, a snap bad judgment that saved Martha (worth hundreds of millions) about 50 grand. The very substance (or lack of substance) of the case in some sense (as each day grinds on) lowers Martha’s iconic stature. And it is this stature, of course, that the government is depending on to seem overweening enough to make the jury want to take her down, and that the media has been counting on to be large enough to provide the circus appeal.
In most trials, something unmistakable has gone wrong—and somebody has to pay. The crime is obvious (if not always the culprit).
But the basic defense argument here, lending to the general sense of flaccidness, is that not only was no one damaged, but nothing was done wrong. Nobody (except crazy Sam Waksal) did anything out of the normal course of business. (And, in turn, the glacial pace contributes to making whatever happened seem like just ordinary, inconsequential, dull-as-dishwater back-office business stuff.)
The government, of course, is arguing that what might seem normal is really a vast subterfuge. But so far, it is hard to get any sense of Martha’s or co-defendant Peter Bacanovic’s great criminal strategy or deceitful design or even essential heedlessness. What’s more, the defense has had a few good shots at turning the suggestion of arrogance and deviousness back into something rather workaday and benign.
Sam Waksal’s secretary, Emily Perret, angelic and nine months pregnant, related how Martha, who called Sam often, called on the fateful day—December 27, 2001—demanding to know what was going on with ImClone and insisting that Emily find Sam at once. Martha was, said Emily, “hurried and harsh and direct,” suggesting a woman enraged at Sam and, likely, determined not to be screwed out of her 50 grand.
But as it happened, the defense elicited from Emily on cross-examination that Martha was, in fact, always “hurried and harsh and direct.”