Martha Stewart, the 62-year-old former fashion model whose opinions on decor transformed the modern American home, will probably spend close to a year in a nondescript Connecticut detention barracks wearing "scrubs," isolated from the business that made her a millionaire, lawyers and prison experts said.
All eyes will be on the domestic diva when she arrives for sentencing at 10 a.m. EDT Friday in New York's Southern District federal courthouse. While several scenarios are possible, lawyers generally agree that Stewart most likely will be ordered into a low-security facility near her home where she will be allowed to read, watch television and work in the prison kitchen.
Stewart was convicted March 5 of lying to the government about her well-timed sale of about 4,000 shares of
in December 2001. The founder of
Martha Stewart Omnimedia
was convicted on all four counts in the obstruction of justice case. Stewart's co-defendant and former Merrill Lynch broker, Peter Bacanovic, was tried alongside his former star client, and will be sentenced a few hours after Stewart.
Federal sentencing guidelines mandate that Stewart serve 10 to 16 months in prison. But legal experts say Judge Miriam Goldman Cedarbaum has latitude to make Stewart's immediate future more or less onerous, depending on her personal view of the woman.
"The judge looked directly at Stewart for five weeks straight," said white-collar defense attorney Scott Thompson. "The resulting sentence will tell you exactly what she thought of Martha Stewart as a person."
Guidelines Gone Wild
Ever since Stewart's lawyers lost the case in March, they have been intent on trying to get their client a new trial, but both motions failed with Judge Cedarbaum and they won't affect her sentencing tomorrow.
But hope springs eternal, and lead attorney Robert Morvillo and company will try to exploit the current confusion over federal sentencing guidelines following the Supreme Court's recent decision in the Blakely vs. Washington case.
In a 5-4 decision, the top court ruled that Washington state's sentencing guidelines unfairly deprived defendants of their right to a jury trial because judges could consider facts that were not part of the charges presented in court when determining sentences.
In the aftermath of that ruling, hundreds of defense attorneys have assailed the guidelines in an attempt to get sentences tossed out. Three federal courts have declared the guidelines unconstitutional.
Morvillo launched a pre-emptive attack on July 8 when he submitted an affidavit declaring the guidelines "unconstitutional and therefore inapplicable in this case."
Without the guidelines, Stewart would face a sentence ranging from five years to probation, compared with the current standard that tops out at 16 months for a crime of her magnitude. So, Morvillo may be betting that Cedarbaum happens to agree with the Court's Blakely decision, or he's simply doing everything he can to keep his client from spending even a day in prison, let alone 10 months.
Legal experts are unconvinced Morvillo's latest maneuver will succeed any more than previous ones.
"Martha Stewart is a bad case for the Blakely problem because the judge will probably not want to raise the profile of an already high-profile case by making a stand on it," says Sean O'Shea, a defense attorney and former U.S. prosecutor. O'Shea expects the judge will give Stewart 10 months in prison, the low end of the range.
John Coffee, a professor at Columbia University's law school, agrees, reasoning that Blakely is unlikely to play a role because Stewart's case is a relatively straightforward one without mitigating or aggravating circumstances that could affect sentencing. Coffee's prediction in what he calls "the most watched and celebrated white-collar sentencing in modern history" is that Cedarbaum will stay near the guidelines for what will be an "inevitable" prison sentence.
Roland Riopelle, a defense attorney and former U.S. prosecutor, says the greatest likelihood is that Cedarbaum will outmaneuver Morvillo's guideline gambit by proclaiming that neither the exiting guidelines nor the subsequent Supreme Court ruling questioning them were factors in reaching her decision.
"That takes away the defense's ability to use the Blakely decision on appeal," says Riopelle.
Time Is Everything
Riopelle predicts that Stewart will be sentenced to one year and one day. And what a difference a day makes. With sentences greater than one year, the criminal needs only to serve 85% of the time if he or she demonstrates good behavior.
For example, at the sentencing of Alfred Taubman, former chairman of
, his lawyer requested the judge add a day onto the one-year sentence. The judge acquiesced to the seemingly counterintuitive request and Taubman eventually was released in less than a year.
Based on that equation, a sentence of a year and a day could be reduced to 10 months, which also happens to be the low end of the range. But that does not necessarily mean Stewart will spend the entire time in one of the two minimum-security prisons most likely to be her latest fixer-upper.
There's also what could be called the town-and-country option, involving the two-residence lifestyle Stewart had previously enjoyed. Judge Cedarbaum has the option to split the diva's time between federal prison and house arrest, allowing Stewart to spend a minimum of five months in prison and an additional five months confined to her home in Westport, Conn.
In such an arrangement, Stewart would have to wear a surveillance bracelet that notifies the local U.S. probation office if she were to stray out of her well-tended garden or in any way breach the perimeter of her property.
A Cedarbaum split decision is the most common prediction among attorneys following the case. Former prosecutor Lauren Resnick is among the majority opinion, even though she expects the prosecution to press for the top end of the range.
"The prosecutors have taken the case this far. They want to show the public that obstruction of justice is a serious crime," says Resnick. "But the judge has been fair so far, so I would be surprised if she gave the top end."
And what if Martha had shown some remorse for her crime or makes an apology before Cedarbaum sends her away? Would that help, even at this late juncture?
No dice, says Seth Farber, an attorney who has tried numerous cases in this particular federal court. "You have to plead guilty for that to work."
New Wardrobe, New Address
After Cedarbaum decides Stewart's sentence, her last dealing with the diva will be to recommend a particular prison. The federal Bureau of Prisons, or BOP, will make the final determination several weeks after sentencing, having undertaken the standard analysis of personal background, criminal history and site availability.
Once sentenced, Stewart will get about 90 days to wind up her affairs before reporting for prison. In the highly unlikely event the judge believes Stewart has a chance on appeal, the diva can continue to remain free on bond until the appeal process begins.
Sources say Stewart's top two choices are Danbury Federal Correctional Institution (nicknamed "Club Fed"), located in her home state of Connecticut, and Alderson Federal Prison Camp (nicknamed "Camp Cupcake"), located in Alderson, West Virginia.
Danbury is the most likely choice for Stewart to spend her sentence as the BOP tries to place inmates within 500 miles of their home. Other famous inmates who have walked its yard include G. Gordon Liddy, Leona Helmsley and Sun Myung Moon.
Danbury is classified as a low-security prison with an inmate population of 1,100 in traditional cells. The prison also has an adjacent minimum security "camp," or barracks-style facility, for 200 women. If there's room and her probation officer recommends it, Stewart would be a not-so-happy camper. If not, she would be sent either to a two-person cell or to a shared cubicle within a wide-open dormitory in the larger facility. (Minimum security facilities have no fence, while low-security ones do.)
In any case, Martha need not fill her designer suitcases. Upon her arrival in Danbury, she will be forced to turn over her personal belongings before being strip-searched for contraband materials.
The newest and most fashionable cellmate on the block will then receive a new set of clothes commonly described as "scrubs." According to the BOP, Stewart's new dress code will be khaki pants (one thing won't change after all) and shirts for work hours and sweats or gym shorts in the evening hours. (All of that sounds convertible to a new line of clothing.)
Stewart will also not be able to transform her cramped new bedroom into a cozy version of a Maine cottage. Prison rules prohibit wall hangings and only allow non-sexually provocative family pictures in a wall locker. Standard issue for a cell is similar to what is given to military personnel in dormitory settings.
The good news for Stewart -- depending on how she looks at it -- is that there is a very good chance she will be spending time working in the kitchen at Danbury, thanks to her culinary skills and short sentence. Unfortunately, her vast previous experience -- including the recipes published in her magazine -- may neither translate well nor, in fact, apply at all.
Speaking of magazines, Martha will be permitted to order the one that bears her name, as long as it comes directly from the company.
If Martha gets tired of reading her magazine, she can surf the television channels to find a rerun of one of her old programs. (The BOP says regular television is allowed as long as it is nothing provocative. )
That will pretty much be the extent of her contact with the media empire she founded. An imprisoned person has severe limitations on his or her ability to engage in his or her business, so Martha Stewart Omnimedia shareholders thinking Martha can use her prison stay as downtime to strategize the company's re-emergence had better adjust their thoughts.
"For all intents and purposes, for the amount of time that Martha is incarcerated she will not be able to attend to her company's business," says defense attorney Charna E. Sherman.
The company has anticipated and prepared for this by marginalizing Stewart's presence on both the flagship magazine and new product launches. (Another ironic twist, considering that Morvillo is widely expected to plead for a reduced sentence on the grounds that removing Martha from the company would cause hundreds of job losses at MSO.)
Finally, Internet access is prohibited in prison, so she won't be able to check her personal or company Web sites, never mind the company's stock price. And if she wants to call her broker, it will come out of the precious 300 minutes inmates are allotted per month.
Obviously, she will not be calling Peter Bacanovic.