Circus Minimus

Martha Stewart entering the courthouse.Photo: Ap WideWorld

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.”

More on Martha Stewart
Which Martha?
By Michael Wolff
There’s the victim, and the schemer, the Connecticut white lady, and the career girl. So who is she? Tell us, and you’ll tell us who you are. (February 9, 2004)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)

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.

Circus Minimus