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Both Martha and Justice Have Suffered, and Now It Will Get Even Worse

Howard Chapman is an adjunct fellow of Discovery Institute

If I had been a member of the Martha Stewart jury, she would not have been convicted. If I were the judge in her case, she would not spend any time in jail.

Had I been on the jury, when we went into deliberations, I would have told my fellow jurors something like this: “Look, Martha Stewart has been charged with lying to a government agent. She was being questioned about insider trading. Insider trading is a crime. But the government did not charge her with insider trading. Why not?

“The logical answer is that the prosecutors did not have an insider trading case against her. In other words, they did not believe that they could prove that she was guilty of it. After the way they have pursued her on this lying charge, you can bet that they would have brought insider-trading charges against her if they had the evidence to do it. Since they did not, I think that we have to presume that she was not guilty of insider trading. Innocent until proven guilty, as they say.

“But the government still wants us to convict her of a felony for not telling the truth when they accused her of insider trading. She didn’t do it, but she lied about not doing it. Does it make sense for us to convict her on that basis?

“Suppose the government said to you, fellow juror, that you are accused of robbing a bank on a certain night, and you say that, no, you were home that night. Later the government decides that you did not rob the bank, but also that you actually spent that night out somewhere. So you get prosecuted for a federal crime because you didn’t tell the truth when you were questioned about robbing the bank, even though you didn’t rob the bank. Doesn’t the government have bigger fish to fry? Shouldn’t they go chase bank robbers who really did rob a bank? In the Martha Stewart case, doesn’t it look like the prosecutors are angry because they can’t prove insider trading, and are being vindictive in pursuing these other charges?”

As it happens, those arguments probably were not heard in the jury room. Before the trial, the prosecutors asked for, and the judge granted, an order that said that the defense could not make that argument to the jury. Martha Stewart’s lawyers were forbidden to mention that the government had never charged her with insider trading. I find that unfair in the extreme and contrary to common sense.

So if I had been there, I would have held out for acquittal, or hung the jury.

And if I were the judge, I would not send her to jail.

She has no criminal record. Except for this conviction, it is absurd to call her a criminal. Every day, our courts grant probation to people guilty of serious crimes of violence. Martha Stewart did no physical harm to anybody, nor was her alleged transgression a “big deal.” A relatively small amount of money was involved — not the multi millions that went missing in companies like Enron, WorldCom or Adelphia.

And let’s keep in mind that, even if she did lie, she was never under oath. Bill Clinton lied under oath, he committed perjury in a federal judicial proceeding, but there was never any suggestion that he should go to jail. He paid a fine, and that was it.

But the prosecution will say that Martha Stewart should go to jail in order to “send a message” that people must never lie to a federal agent. Hardly. The message will be, “Never talk” to a federal agent. Demand to see your lawyer, and let him or her do all your talking. The irony is that the real criminals, the organized crime figures and the people who have served time in prison, already know that lesson. It’s the people who are not really criminals, people like Martha Stewart, who get tripped up by this “Brave New World” law.

(The law, of course, does not cut both ways. The federal agents could lie to Martha Stewart — or to you — until the cows come home, and they would suffer no penalty.)

So if I were the judge, I would say to the prosecutors, first, that I know darned well that this case would never have been prosecuted if it were not for the publicity. What’s more, in 99 cases out of 100, a defendant with her record and convicted on these charges would not get jail time.

I’m not a fan of Martha Stewart. I have never bought her magazine or watched her on television. I don’t own any stock in her company, nor do I have any interest in her or her affairs. I just can’t help feeling that a miscarriage of justice has occurred, and promises to get worse.

Howard Chapman of Fort Wayne is an attorney.