Clerk: "State your full name for the record."
Witness: "Martha Stewart."
This could well be one of the most anticipated moments in
courtroom drama since O.J. Simpson took the stand. Although it's not
certain yet whether Ms. Stewart will testify, her lawyers will
decide soon as the prosecution wraps up its case.
If the blond celebrity does take the oath, she will try to
convince the jury that the whole affair can be explained. She would
try to turn on her charm and show she's just an ordinary person -
well, with a few extra recipes for duck pate in her pocketbook.
With her defense about to begin, lawyers who have been watching
the case believe she may have to testify to avoid losing -
especially when it comes to the charge of misleading the government
in its investigation of ImClone stock trades. That's because the
government, which said it would rest its case Thursday, has been
effective at painting a picture that only Stewart herself can
For one of America's most famous businesswomen and cultural
icons, taking the witness stand would present both the chance to win
over the jury and the risk of being trapped by a nimble prosecutor.
It is a decision her lawyer is likely to make in the coming days and
weeks as he tries to gauge how badly she has been damaged by the
evidence. One of the key factors he is likely to weigh: Many jurors
will probably want to hear her side of the story.
"There is a much greater pressure than most criminal trials to
put her on the stand," says Kirby Behre, a partner at Paul,
Hastings, Janofsky & Walker in Washington. "You would have a fear of
a backlash if she does not testify."
The pivotal issues
If she does take the stand, trial lawyers believe these are some
of the key areas she'll have to address:
* The message change. Her assistant Ann Armstrong has testified
that Stewart changed a phone message from Peter Bacanovic, her
stockbroker, only days after she was told she was under
investigation. The original message read, "Peter Bacanovic thinks
ImClone is going to start trading downward." She changed that to
"Peter Bacanovic re imclone," but then wanted it changed back again.
Four days later she allegedly told the government "she didn't know"
if there was a written record of his message.
"That is a powerful piece of evidence," says Mr. Behre, a former
federal prosecutor. "It is the most damaging testimony."
It is also an area the prosecutor would most likely focus on
during any cross-examination of Stewart. "I think the jury is very
curious about why she changed the message," says Eugene Goldman, a
former senior attorney with the Securities and Exchange Commission