We all know Martha Stewart can cook. What she needs now is a lawyer who can clean.
When the trial resumes Monday, Martha Stewart's attorney, Robert Morvillo, must figure out a way to buff up his client's reputation after the government's star witness, Douglas Faneuil, sullied it with a string of emails that portrayed her unflatteringly in testimony Thursday.
The stakes are high. Stewart and Faneuil's boss, Peter Bacanovic, both could go to jail if convicted of lying about the circumstances surrounding the domestic entrepreneur's sale of about 4,000 shaes of
in late 2001. According to Tom Dwyer, partner at the white-collar criminal defense firm Dwyer & Collora, Morvillo is their best bet for victory.
"I know probably every top white-collar defense lawyer in the country, and without a doubt Bob Morvillo is the best," said Dwyer. "He's got judgment, common sense, experience, a great understanding of the human condition and he's not apt to make a mistake."
He also is known in legal circles as tough on witnesses during cross-examination. "Robert Morvillo is known as an aggressive guy," said Gerry Shargel, a criminal defense lawyer and professor.
He better be. Stewart's margin of error narrowed appreciably last week after Bacanovic lawyer David Apfel failed to shake the 28-year-old former
clerk in cross-examination Wednesday and Thursday. While Apfel was able to show Faneuil disliked Stewart -- "Baby put Miss Martha in her place!" read one of several emails he sent friends -- many observers think the strategy backfired. Morvillo himself was peeved enough by the display that he called a sidebar meeting with his defense colleague, after which Apfel changed his tack.
Now Morvillo must figure out a way to discredit Faneuil without tarnishing his famous client further. If he can't, he could be forced to put Stewart on the stand -- a tactic, most legal experts say, that reeks of desperation.
"A defendant should not take the stand unless it is absolutely necessary to introduce a piece of evidence that is needed for the case," said Jim Cole, an attorney for Bryan Cave LLP in Washington and a former Justice Department official. "All you need to do is catch the defendant in one lie and they are dead."
Said Shargel: "If the defense feels they are behind and need to make a Hail Mary pass, then she'll take the stand. But it's too early to tell the score because Robert Morvillo has not cross-examined Faneuil."
Jack Menz, partner at Menz, Bonner and Komar LLP, said the defendants' story -- that Stewart's sale was made under a stop-loss order that kicked in when ImClone hit $60 -- is already in serious trouble.
"Unless you are going to rely solely on Bacanovic's handwritten note, then someone has to testify that there was a deal to sell the stock if it traded below $60. Who is going to do that? Either Bacanovic or Martha, or both of them. The jury wants to hear from them," Menz said.
One issue on which most legal experts agreed is whether Stewart will cut a deal with the government to extricate herself from this jam. None of the lawyers spoken with believe that is in the cards.
"She has nothing to give at this point to make a deal unless she wants to turn on Bacanovic," says Cole. "That horse is already out of the barn."
Menz thinks Bacanovic and Stewart are too close to roll.
"Either one of them could cut a deal now to offer up the other if in fact the pair is guilty. But so far, Bacanovic has been loyal to Martha. And that's because he's extremely loyal, or telling the truth," says Menz.
"That break would have already happened. Bacanovic has had two years to think about breaking with Martha and he hasn't done it."
That's not to say we won't see any fissures between Team Stewart and Team Bacanovic next week. They may be seated at the same table, but their fates are intertwined only to a point.
Take Morvillo's interruption Thursday afternoon when Apfel was questioning Faneuil about his personal emails. When Martha started to look too nasty in front of the jury -- which was audibly chuckling -- Morvillo popped up to ask the judge for a sidebar conference.
Criminal defense lawyer Labe Richman has done a lot of white-collar federal work and believes that Morvillo's disruption might have been more than just an attempt to shield his battered client. Richman suggests that Morvillo allowed Apfel to introduce the negative emails to set himself up for an appeal if that becomes necessary, then headed the testimony off when it got too explicit.
"Morvillo is in a win-win situation because he now has an appellate issue in that unduly prejudicial evidence came into evidence against Martha as a result of Apfel's introducing the emails," says Richman. "Plus, he gets to question Faneuil about them on Monday, to see if this was his motivation for lying."
When Apfel resumed his questioning, he changed the topic to Faneuil's memory of the events of Dec. 27, 2001, the date of Martha's infamous ImClone trade. It was a line of questioning, by the way, that proved far more successful than his attempt to portray Faneuil as being fixated on Martha.
By then, however, the jury might have been too tired to notice.
Whatever happens next week, the trial is far from over. And as attorney Jack Menz points out: "The jury is instructed not to form conclusions until all the evidence is in. Neither should we."