Cooking Up Doubt for Martha

Lawyers weigh in on how Stewart's defense team can sow uncertainty with the jury.
By Gregg Greenberg ,

Unlike her rival Emeril Lagasse, Martha Stewart does not allow her studio audience to pass judgment on her culinary creations. The only taste-testers allowed to set foot in her kitchen are celebrities or Stewart's family members.

In order to keep on cooking, however, Martha now needs the thumbs-up not from Bill Cosby, Rosie O'Donnell or her mother, but from one member of a celebrity-free 12 person jury who must find reasonable doubt in the case against her.

TheStreet.com

asked a number of legal experts who have been tracking the trial for their prediction on how Stewart's criminal obstruction and securities fraud trial will end. We also inquired as to where in the trial's evidence and testimony Martha's lawyers might find the best recipe for reasonable doubt in their closing arguments next week.

Jim Walden -- Partner, O'Melveny & Myers; former federal prosecutor

Prediction:

"Anyone that says they can truly predict the outcome probably has snake oil in their pocket. My guess is that there will be a compromise verdict."

Recipe for Reasonable Doubt:

Stewart's lawyers have their best chance to create reasonable doubt during their summations by "stretching the areas where jurors are left to connect the dots."

"There are multiple areas in the proof where the government is essentially asking the jurors to stretch their imaginations. Martha's business manager Heidi DeLuca's testimony is a good example. The government is asking the jurors to conclude that Heidi made up the $60 dollar conversation with Peter Bacanovic, instead of the more natural conclusion that Peter was mistaken in his interview with the government when he said he never spoke to Heidi about a $60 limit order."

Michael Bachner, partner, Bachner & Herskovits; criminal lawyer

Prediction:

"Martha will either be convicted of obstruction or the jury will be hung."

Recipe for Reasonable Doubt:

Attack the government's key witness, Douglas Faneuil.

"The recipe for reasonable doubt would be to focus on Faneuil's credibility and his motives to fabricate. Faneuil strikes me as an individual who not only disliked Martha on a personal level, but as somebody who enjoyed injecting himself into the limelight of this case."

Christopher Bebel, Partner, Sachs, Bebel & Boll; former SEC attorney

Prediction:

"The conspiracy charge will harm Martha Stewart the most, because it casts the broadest net. Conspiracy is the most difficult charge to defend against because it encompasses all aspects of the cover-up."

Recipe for Reasonable Doubt:

In a "he-said, she-said" case, it's tough to identify exactly what anybody said without a tape recording or transcript. Bebel thinks the defense can create the greatest amount of doubt by hammering away at the notes of FBI agent Catherine Farmer.

"Because there are no transcripts of the Martha Stewart interviews with government investigators, the inability to point to the precise words that she utilized enhances the odds that she will walk on the lying charges.

Jacob Zamansky, partner, Zamansky & Associates; securities lawyer

Prediction:

"I believe that Martha Stewart and Peter Bacanovic will be convicted of the charges of obstruction, false statements and likely conspiracy."

Recipe for Reasonable Doubt:

None.

"The defense did nothing to refute the clear testimony of Faneuil, corroborated by Pasternak, that Martha received an inside tip regarding Waksal selling. There appears to be no credible evidence that Martha had an agreement to sell at $60 which could lead to reasonable doubt by the jury."

Dan Ollen, criminal defense attorney, former Manhattan prosecutor

Prediction:

: "She'll beat the securities fraud and conspiracy raps, but will go down on lying to government investigators."

Recipe for Reasonable Doubt:

Ollen says an apathetic jury is Stewart's best bet for acquittal.

"Martha's biggest ray of hope is if the jury just says 'who cares?' She's being charged with lying about a crime she's not being charged with. Even if she's guilty, the jury might not care enough to convict her."

Gerry Shargel, defense attorney, law professor

Prediction:

"I gave up predicting the outcome of trials a long time ago."

Recipe for Reasonable Doubt:

Martha's fate is more a matter of taste than law.

"Reasonable doubt, like beauty, is in the eye of the beholder. If the jury still likes Martha after hearing all the evidence, they'll find reasonable doubt."

Bill Singer, securities lawyer

Prediction:

"I'm expecting an acquittal or hung jury. Defense lawyers have a saying: As long as prosecutors give me something to hang my hat on in the case, it can always be used to open the door for acquittal. And the government did just that."

Recipe for Reasonable Doubt:

Singer is confident in Stewart lawyer Robert Morvillo's ability to neutralize any witnesses the government used to attack his client. Once Morvillo deconstructs the credibility of the government's key witnesses, says Singer, the prosecution's case crumbles and doubt is created in the juror's minds.

"After the government put on their witnesses, Morvillo masterfully managed to undo any damage the government might have done to his client. In the case of Stewart's best friend Mariana Pasternak, Morvillo took out the knife, wiped it off and put it back in the scabbard."

Labe Richman, criminal defense attorney

Prediction:

"It's a close case, but my prediction is that Martha goes down on the obstruction charge and is acquitted on the securities fraud charge."

Recipe for Reasonable Doubt:

Richman says creating reasonable doubt in jurors' minds is important, but Martha's lawyers should also appeal to the jury's emotions.

"If Morvillo can get the jurors to feel sorry for Martha during his summation, that Merrill Lynch created this problem for her, then they might not convict her for simply responding to a phone call from her broker. But he's got to be subtle because this strategy basically admits to the jury that there was no agreement to sell at $60."

Ron Fischetti, defense attorney

Prediction:

"Predictions are crazy."

Recipe for Reasonable Doubt:

Fischetti says the defense teams can find reasonable doubt in a number of areas, including Farmer's notes, Faneuil's testimony and the unlikelihood of Stewart to commit a crime over such a small percentage of her net worth.

"The government's evidence comes from an FBI agent's notes, not a tape recording. The words are the crime and they have no proof. ... Meanwhile, Peter Bacanovic's statement was tape-recorded and Douglas Faneuil's was not. That's reasonable doubt in and of itself."

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