Which Martha?

Photo: AP Worldwide photos

It’s not in the least clear who’s going to win, or even who has the upper hand, or who holds the true moral high ground. That’s one reason (beyond the joie de vivre of a celebrity trial) why the big satellite trucks are in front of the old courthouse, and why the rows of cameramen are shivering under flimsy tents, and why the cream of the trial press corps—Dominick Dunne from Vanity Fair, Jeffrey Toobin from The New Yorker, and Henry Blodget, the former Internet-stock analyst reinvented as a Martha reporter—is lining up at 8 a.m. This isn’t just a white-collar case. It’s a blood sport.

Martha, the cool and frightening woman who has used all her wiles to take what is hers, and the government, that hot-under-the-collar prosecutor of the culture wars, are equals, powerful enemies squaring off against each other.

What precisely they’re squaring off about is unresolved. The prosecution wants the jury to believe that it merely has a single-minded devotion to truth: Martha Stewart lied, simple. And she lied arrogantly. The arrogance is in some sense the offense that justifies the cost of such a trial as well as a long incarceration for Martha and her co-defendant, Peter Bacanovic. And she conspired. The conspiracy suggests her social sins. The Martha world. Exclusive. Incestuous (Martha got to know Sam Waksal because he dated her daughter). And gay. (Bacanovic, the broker and co-defendant, was also her walker.)

The defense, in addition to insisting that no lies were ever told, wants the jury to believe that Martha, that mythic figure of female enterprise, is being ganged up on because there is just something about a successful woman that so many people still find hard to like.

The prosecution wants us to believe that Martha is Kozlowski (still being tried in a nearby courtroom) or the Enron bookkeepers—a financial schemer, an arrogant fat cat, a kind of evil incarnate for our time. Whereas for the defense, she’s Dreyfus, indicted not for what she did but for who she is. How you perceive Martha is a road map to your own cultural prejudices.

Indeed, she presents herself as a victim, albeit of a special kind. The gossip about her handbag during the jury-selection phase—when Judge Miriam Cedarbaum, a school-teacherish figure, banned the press from the courtroom, so all they had to chew over was her passing image—was, in fact, way off point. There is no sense of grandiosity or flippancy or Michael Jackson–ness about Martha; quite the opposite. It’s all reserve and poignance and gravity. And aloneness. A state—woman against the world—that is emphasized by her lack of a spouse or significant other. She has no support beyond her own self (and her own millions). It’s just Martha—and her daughter, Alexis (who got her into this mess in the first place), and her 89-year-old mother, and the lawyers she pays.

You can’t look at Martha in the dock without finding yourself trying to imagine her particular hell. It’s impossible not to keep considering (pro and con) the very idea of Martha in prison.

And yet the victimology, while almost affecting, is also, of course, disingenuous. We are not here just to see a heretofore supersuccessful woman under attack but as much to see her fight back—the victim thing, we understand, is tactical.

Her fight involves the-best-money-can-buy legal team, a superb public-relations operation, a cool Website, and appearances with Barbara Walters (who visited the trial) and Larry King (along with her mother), but, most of all, her own courtroom performance—not just on the witness stand, but sitting here every day.

Her demeanor could well be as important to her defense as the details of her stock sale. In some clear sense, what we are all here to do (jury as well as press) is to look at Martha (members of the press corps invariably deride the attention her clothes are getting even as they analyze who’s designing what outfits and what effect she’s trying to achieve with her elegant sackcloth). Surely, part of the fun, or titillation, of the trial is the glimpse of Martha in the real world. The control freak in the control of other forces.

It’s a sort of social experiment to see Martha, this doyenne of private enterprise, in this public space. It’s such an unlovely space, too. Faux grand: large, ungainly, and badly lit. How does she suffer it?

How will she react to the inelegance, the inartfulness, the banality, the boredom, the bad suits, the un-Martha-ness (a floral display would make a big difference here) of courtroom life?

Can she keep from rolling her eyes or wincing or crying out at the humdrumness of the proceedings and the bad acoustics (with steady, low-level feedback) and the repetition (one of the disadvantages of having a co-defendant is that you have to go over so much of the same territory twice) and the judge’s meandering pace. (“She lets lawyers talk a lot and agrees with the last lawyer she hears, so the lawyers try to talk a lot,” my benchmate, a veteran trial reporter, explains—the visiting press hangs on every word of the actually knowledgeable press.)

Even her own lawyer, Robert Morvillo, short, fleshy, round-faced, Rumpole-ish, with ineptly dyed hair and a cringe-deserving comb-over, is dramatically, or comically, un-Martha-like. But surely he was chosen for that reason (in addition to his evident skillfulness). He helps humanize her. (The prosecutor, Assistant U.S. Attorney Karen Patton Seymour, may in turn suffer from a surfeit of corporate-woman black-suit professionalism. She seems thin and mean, whereas Martha seems fuller and gentler.)

More on Martha Stewart
Can This Man Save Martha?
By Chris Smith
Veteran criminal-defense attorney Robert Morvillo is the last thing standing between Martha Stewart and federal prison. Never mind that the Brooklyn-born Morvillo is built like Don Zimmer and sounds like Ed Koch. For Martha, he could be the ultimate good thing. (December 15, 2003)Jail Bait
By James J. Cramer
Martha Stewart’s being treated unfairly, she’s being singled out, right? Nonsense. By mounting a breathtakingly inept defense that only served to taunt prosecutors, she wrote her own indictment. (June 23, 2003)I Love Martha
By Michael Wolff
If Martha Stewart gets sent away, I’ll miss not only her but her genius business model: a media empire built around the idea that Martha could be paid to be Martha.(October 21, 2002)

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.

Which Martha?