This Media Life

Circus Minimus

Later, another in a series of the prosecution’s witnesses from the compliance department at Merrill Lynch (all of Merrill’s compliance witnesses seem ungiving and nearly misanthropic), from whose Rockefeller Center branch the problematic trades took place, dwelled on the suspicious nature of the December 27 sales. There was Sam’s daughters’ unloading of shares and Sam’s transferring his shares into one of his daughters’ accounts and then, the day before the stock was to take a 20 percent plunge, Martha’s selling her shares, too. Which all looks pretty bad—and, indeed, looked so bad that the trades were referred to the SEC for investigation and further action.

Except, as the defense squeezed from the Merrill witness, in the weeks prior to the fateful 27th, ImClone shares had fallen from the mid-seventies to the mid-fifties. Anxiety, in other words, was already in the air. It stunk of it. ImClone’s application to the FDA for its cancer drug was just too risky for many. Or, quite possibly, many people knew the application was going down. Word was out. Or part of the word was out—a rumor, after all, is inside information, just not necessarily reliable inside information. In other words, it would have logically been on any attentive shareholder’s mind to consider selling. And a great many were: ImClone had five times the usual number of sellers during the period in which Martha sold. She was not engaged in singular or extraordinary behavior. She was, in fact, doing the normal thing. The only difference was that she knew Sam, that her broker was Sam’s broker, too, and that her name was Martha.

And that Doug Faneuil flipped.

Now, it is likely that there would be no problem here—at least no courtroom scene—if Peter Bacanovic himself had called Martha on the fateful day to advise her that the Waksals were selling. Instead, Doug Faneuil did it. And, indeed, this is an element of the defense—if Peter had truly been up to no good, would he have let Doug, his new assistant, relay the message?

Nor would there likely be much of a problem if ImClone’s FDA application for its cancer drug, Erbitux, had not been rejected the day after the sale of Martha’s shares. While nobody is accusing Martha of knowing that (the real inside information), nevertheless events conflate.

And so Doug Faneuil came to be at the center of something big.

Faneuil is Candide. And the problem for Martha (in fact, Faneuil’s testimony is a much larger problem for Bacanovic) is that he’s a very good Candide. He’s open and unaffected and charming. And young and slight and good-looking (he could be 16, or someone playing a 16-year-old on The O.C.). And self-dramatizing. (The self-dramatizing appealed to the tabloids, which made Faneuil the Martha-killing ingenue.)

“He had a gift for mimicry. You had the feeling he’d made the story a bit too much his own.”

He has the brazen and beguiling temperament to address the jury directly, as a personal aside, explaining difficult things, befriending it.

He’s a startling presence. A written character. A played character. Dreamy and yet precise.

“Did you take acting lessons in preparation for your testimony in court?” David Apfel, Bacanovic’s lawyer, suddenly, in some frustration, challenged him.

What’s more, the judge seems surely, perhaps instinctively, to be protecting him—mothering him. Each time the defense comes in to shake him—and a few times the defense has gotten from Faneuil a flash of stubbornness and snottiness—the judge seems reflexively to thwart the line of questioning.

Midway through his cross-examination, the danger for the prosecution seemed, in a sense, not that Faneuil would be shaken but that he would continue to tell his story too well.

He was so much enjoying the story. He had a gift for mimicry and was playing the various parts—Peter Bacanovic was his favorite role. He was doing a passable Martha too. But you had the feeling that he had made the story just a little too much his own.

That he might be lovable but not necessarily trustworthy.

So what exactly are we doing here?

This is probably not the kind of question a prosecutor wants a jury to be asking. But because the issue is not, as it might have seemed with Michael Milken, the very future of capitalism, or, as with Enron, the integrity of the system, or, with Kozlowski, a really big amount of dough, it is an inevitable question.

Likewise the idea that the Martha trial could become a very mediagenic window into the nature of greed and overreaching and the Ozymandias side of branding, is not exactly borne out. It’s just not, you realize as the ledgers and forms and old faxes get flashed up on the screen, that epic. In fact, it’s all fairly puny. Dullness becomes a certain sort of defense.

You can’t put a woman like Martha in jail by being this dull. (Though perhaps the prosecution is hoping that by making everything so small, reducing her this way, Martha gets judged like everyone else—of course, if she were like everyone else, she wouldn’t be in this predicament.)

As your mind wanders from the compliance details—we are a nation of bookkeepers, it turns out—it is as inevitable that you find yourself wondering what Martha herself might be thinking. That remains the unspoken but epic side of this trial. Not just that she would have so much, willed so much into being, and stands now to have it disappeared, but that it really is the little things that catch you up in life.

So little—done with such a half a thought, or done in some scramble of franticness, something that might, in other circumstances, be overlooked—that it is very hard not to identify with Martha. Not to find it frightening and hideous to imagine what she must be thinking now—and what she thinks waking up in the night.

We are not that far from being in this with Martha.