The Rittenhouse Review

A Philadelphia Journal of Politics, Finance, Ethics, and Culture

Tuesday, February 17, 2004  

No “We Think He Said, We Guess She Said” Games

Reuters today reports:

The federal judge in the Martha Stewart trial on Tuesday barred prosecutors from speculating before jurors that the trendsetter and her former stockbroker might have discussed a stock tip cover-up during phone conversations.

U.S. District Judge Miriam Goldman Cedarbaum ruled that while government lawyers may introduce logs of phone calls made between the two defendants while they were being investigated in early 2002, they cannot tell the jury what they think those conversations involved.

“You cannot argue what they said from the phone records,” the judge said, adding that the lawyers also could not encourage the jury to speculate on the content of the conversations. […]

Tuesday’s ruling follows another blow to the government last week when Cedarbaum prohibited prosecutors from calling expert witnesses to testify that Stewart's public denials about receiving a stock tip influenced investors in her own company.

According to Reuters, prosecutors expect to conclude presentation of their case “by Thursday.”

Between now and then prosecutors are expected to focus on a worksheet in broker Peter Bacanovic’s office they allege he fabricated after the fact to support the contention Stewart and Bacanovic had a preexisting agreement to sell her shares of ImClone Systems Inc. when they reached $60.

Earlier reports indicated prosecutors planned to introduce experts on handwriting and ink analysis to support their side. (Yeah, juries really eat that stuff up. Zzzzzz.)

It looks like the securities fraud charge, the most serious of those made against Stewart, has been all but forgotten. We’ve yet to see any material evidence presented on this matter, and with a “by Thursday” conclusion to the prosecutors’ case, there’s little time remaining for such evidence to be presented.

Related links:

Martha McCarthyism,” by Michael Wolff, New York, February 23.

Star Witness,” by Jeffrey Toobin, the New Yorker, February 16. (Pull quote: Robert Movillo, Stewart’s lead attorney, in reference to the performance of prosecution witness Douglas Faneuil: “I’m going to object to the acting.”)

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