EX-HUBBY SAW FALL COMING (Martha)

New York Post ^ | 3/08/04 | JOHN LEHMANN

[Don Joe]

dwilli: Will any of the "pound of fleshers" advise Wes Pruden to take his message back to DU as I was advised to do?

Bluntpoint: They are all out with their Sharpies writing "ZOT" on all the Washington Times paper machines.

My, my, my, the French Knitting Team seems to be getting flustered. Apparently the blood of Ms. Stewart running in the streets is not nearly sufficient to sate their appetites.

Knit! Knit! Knit!

And do remember to cackle on cue, of course.

[from occupied ga]

It appears that envy is alive and well with the "french knitting team" LOL

[Don Joe]

But then, you'd prefer to live in a " LORD OF THE FLIES " kind of world, than one that had some laws.

Of course not. Who in his right mind would want a "young boy's reenactment of the French Revolution on a deserted island"?

After all, they may not have been old crones, and they certainly didn't sit there knitting, but they certainly enjoyed the same "liberty" enjoyed by the mobs during the French Revolution.

The setting doesn't really matter, it's the mob mentality that sets the tone.

[Don Joe]

It's surreal.

[Hildy]

Have you ever seen the Ex-wife of a fallen business leader interviewed before? NEVER. What the hell does it matter what an EX has to say? Oh, I forgot, it's a man's opinion, it must merit more.

[Howlin]

Nice dodge.

[Howlin]

As I said, people who know far more than you do, disagree with you:

Stewart and Bacanovic have a difficult task, outside lawyers said. Appeals judges review most issues against the standard of whether the trial judge abused his or her discretion, a very tough benchmark to meet.

Martha Stewart's Appeal Won't Be Easy

Still, lawyers say it will be an uphill battle in the Second U.S. Circuit Court of Appeals, which overturns fewer than 10% of appealed convictions. Moreover, many observers believe U.S. District Judge Miriam Goldman Cedarbaum didn't make a lot of mistakes that would support an appeal.

Stewart, Broker to Appeal

I've not heard or read any lawyer or article say that anything the jury does can be grounds for appeal.

How about posting a link to an article that states that.

And do you realize that even if they were able to convince an appeals court that the judge made a procedural mistake that means she would have a new trial which means the original charges (including the ones the judge threw out) are heard all over again. If the new trial turns out badly, Martha could be facing MORE prison time than she is now. It's a huge gamble.

I'm fascinated by these arguments of class envy, vindictiveness, and jealousy.

Now this I just do NOT understand. Jealousy of what? Vindictiveness towards what?

How is it that Martha - or anyone, for that matter - can be elevated in someone's mind to a position of such worthiness that it can be said that other individuals are not even worthy of shining her shoes? What kind of class-ism is this? This sounds straight out of a caste system.

Some are worthy of worship, others are delegated to being on their knees groveling before the goddess. There's lots of groveling going on on these threads, that's for sure.

[Bluntpoint]

I practiced law for close to twenty years. I was speaking from experience.

[Howlin]

Twenty years, huh? Well how about posting some precedents then.

[Bluntpoint]

Hire a law clerk.

I was advising you based upon my experience.

Maybe you can google using terms like appeal jury juror instructions.

Knock yourself out.

I'm retired from the law.

[Howlin]

Well, I was able to Google up articles that backed up MY position.

If you're not interested in backing up your OPINION, that's up to you.

[Bluntpoint]

Reread my original post, often times jury comments are a basis to appeal the instructions to the jury.

It is first year law school stuff.

Ninth Circuit Model Criminal Jury Instructions
Introductory Comment

It is within the district court's discretion to provide the jury with preliminary instructions including preliminary instructions regarding elements of the offenses charged. United States v. Aguon, 851 F.2d 1158, 1161 (9th Cir. 1988), overruled on other grounds, Evans v. United States, 504 U.S. 255 (1992). However, erroneous pretrial instructions can be the basis for appeal. Caution should therefore be used in giving preliminary instructions when there is a dispute as to applicable law. Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir. 1988). See also United States v. Hegwood, 977 F.2d 492, 495 (9th Cir. 1992) (absent defense objection, correct instruction at trial cured error in preliminary instruction), cert. denied, 508 U.S. 913 (1993).

[Howlin]

Very nice. For district courts.

I am under the impression from the lawyers who have discussed this on tv that it does NOT apply to federal cases such as this one.

Not one of them has mentioned a problem with the jury being reasons for appeal; in fact, most of them have outright stated that that is not the case in federal trials.

We shall see who is correct; if I am wrong, I'll be back to admit it, as I am sure you will be.

[Don Joe]

Nice dodge.

Thanks, but look again. It's a Toyota.

[Howlin]

Experts say Martha Stewart faces tough appeal
Reuters, 03.09.04, 4:58 PM ET


By Gail Appleson

NEW YORK, March 9 (Reuters) - Martha Stewart will have a tough time convincing an appeals court to throw out her convictions, raising the question: how much time might the woman who made millions giving advice on gracious living have to serve behind bars, lawyers said on Tuesday.

Legal experts said the best-case scenario -- the dismissal of the guilty verdicts handed down on Friday -- will be extremely difficult for defense lawyers to win and that Stewart's trial poses a particularly high hurdle because of the accuracy of the judge's rulings.

Ivan Fisher, a prominent Manhattan defense attorney, said that appeals court reversals are typically based on errors made by the trial judge.

"I don't think she made any," he said of U.S. District Judge Miriam Goldman Cedarbaum, who oversaw Stewart's seven-week trial for lying about a suspicious stock trade.

Stewart, 62, was convicted on Friday of conspiring with her former Merrill Lynch stock broker to hide the reason behind her suspicious sale of shares in the biotech company ImClone Systems Inc. (nasdaq: IMCL - news - people) on Dec. 27, 2001. She was found guilty of one count of conspiracy, two counts of making false statements and one count of obstruction of agency proceedings.

Experts said Stewart could be sentenced to between 10 months and two years for her crimes.

Although Stewart was convicted of lying to investigators about the circumstances of the stock sale, she was not charged with insider trading. Because of this, the judge barred the defense team from arguing that no illegal trading took place.

GROUNDS FOR APPEAL?

Andrew Schapiro, a white collar defense lawyer who specializes in appellate work at Mayer, Brown, Rowe & Maw, said this could give Stewart grounds for an appeal.

"Her lawyers certainly have their work cut out for them but they have one strong issue and maybe more," Schapiro said.

"They can be expected to argue that Judge Cedarbaum violated Martha Stewart's right to put on a complete defense by prohibiting her from putting on testimony or evidence about insider trading law."

But Joel Cohen, a lawyer at Greenberg Traurig, was doubtful.

"I'm not aware of any fundamental errors by the judge," he said. About the insider trading issue, he said, "It isn't what you do, it's the cover-up."

Stewart is scheduled to be sentenced on June 17, although that date could be delayed if lawyers contest key issues the judge will consider in setting the trendsetter's punishment.

The celebrity homemaker, who built a media empire out of a catering business, began that torturous process on Monday as she met with the probation department. That office will submit a report to Cedarbaum suggesting a sentencing range.

Legal experts predict that the range will most likely be between 10 to 16 months in prison. However, Fisher said it could be a higher level of 18 to 24 months if it is determined that Stewart substantially interfered with the ImClone probe.

Defense lawyers are expected to seek a downward departure of the suggested guidelines.

"A good argument will be that this was aberrant conduct," said Fisher. "She has led a spectacular life ... in the course of a lifetime, she has given much to society."

After sentencing, the next big question will be whether Stewart will remain free pending appeal.

Schapiro said for this to happen, the judge will have to find a "plausible" issue that the defense could win on appeal.

There is a good chance Stewart could temporarily remain free, said Cohen, because the U.S. Second Circuit Court of Appeals has traditionally taken a liberal view of the "plausible" issue standard in non-violent crime cases.

But even if Stewart is not confined while the case is pending before the Second Circuit, that freedom will most likely be short lived.

Cohen said that while it is possible Cedarbaum could sentence her to home confinement, his guess is that she might be given a maximum of 13 months.

"She will come out of a jail a very wealthy woman," he said. "She will survive. Even her professional career will survive."

[Howlin]

Mar. 10, 2004. 01:00 AM

Martha shares continue to dive in wake of verdict
Founder's future still up in the air

Home diva may face tough appeal


NEW YORK—Martha Stewart's felony conviction rattled through her rapidly eroding business empire as shares of her namesake company kept falling, Viacom Inc. cancelled her syndicated television show and she quit the board of cosmetic giant Revlon Inc.

But the big question that remains is the future of the domestic diva's bread-and-butter job as a leader within the company that bears her name.

Martha Stewart Living Omnimedia Inc.'s board met Monday to discuss Stewart's future, according to a source close to the company who spoke on condition of anonymity. Company officials would not comment and it was unclear whether the board took any action.

Company officials did not return calls seeking comment yesterday.

Shares of Martha Stewart Living Omnimedia fell 35 cents (U.S.), or 3.5 per cent, to $9.55 yesterday, adding to a drop of 8 per cent Monday and nearly 23 per cent Friday after the verdict.

Stewart stepped down from her roles as chairman and chief executive after being indicted in June but remains a board member and chief creative officer. With her conviction, the U.S. government will likely press to have Stewart removed from the board.

Stewart was convicted Friday, along with stockbroker Peter Bacanovic, of lying about why she sold 3,298 shares of ImClone Systems Inc. stock on Dec. 27, 2001, just before it plunged because of a negative report from government regulators.

Stewart was convicted of conspiracy, making false statements and obstruction of justice. Bacanovic was convicted of conspiracy, false statements, obstruction and perjury — but cleared of falsifying a document. Both have said they will appeal.

Legal experts said the best-case scenario, the dismissal of the guilty verdicts handed down Friday, will be difficult for defence lawyers to win and Stewart's trial poses a particularly high hurdle because of the accuracy of the judge's rulings.

Ivan Fisher, a Manhattan defence lawyer, said appeals court reversals are typically based on errors made by the trial judge. "I don't think she made any," he said of U.S. District Judge Miriam Goldman Cedarbaum, who oversaw Stewart's seven-week trial.

Although Stewart was convicted of lying to investigators about the circumstances of the stock sale, she was not charged with insider trading. Because of this, the judge barred the defence team from arguing that no illegal trading took place.

Andrew Schapiro, a defence lawyer who specializes in appellate work at Mayer, Brown, Rowe & Maw, said this could give Stewart grounds to appeal. "Her lawyers certainly have their work cut out for them but they have one strong issue and maybe more," Schapiro said.

"They can be expected to argue that Judge Cedarbaum violated Martha Stewart's right to put on a complete defence by prohibiting her from putting on testimony or evidence about insider-trading law."

But Joel Cohen, a lawyer at Greenberg Traurig, was doubtful. "I'm not aware of any fundamental errors by the judge," he said. About the insider trading issue, he said, "It isn't what you do, it's the cover-up."

Both Stewart and Bacanovic are expected to get 10 to 16 months in prison when they are sentenced June 17.

However, Fisher said Stewart could draw a longer sentence of 18 to 24 months if it is determined she substantially interfered with the ImClone probe.

Defence lawyers are expected to seek a lighter sentence.

"A good argument will be that this was aberrant conduct," Fisher said. "She has led a spectacular life ... in the course of a lifetime, she has given much to society."

Cohen said that while it is possible Cedarbaum could sentence her to home confinement, his guess is that she might be given a maximum of 13 months.

"She will come out of a jail a very wealthy woman," he said. "She will survive. Even her professional career will survive."

FROM THE STAR'S WIRE SERVICES

[Bluntpoint]

No, in this case, as I said in my original post, there probably is not grounds for appeal.

My post went to your sweeping and mistaken impression of what is and is not appealable.

And you were wrong.

But I only went to law school and practiced trial law for near 20 years.

I taught a number of CLE classes on appellate civil procedure.

I don't have your tv watching experience.

Maybe you can watch ER and diagnose my heart ailment.

[Don Joe]

I think I'll just second what Mr. Bluntpoint suggested: "Knock yourself out." I've got a life to live. Well, what's left of one, at least. I long ago resolved not to devote any more effort than necessary to people who strike me as bellicose, or otherwise unpleasant vis-a-vis their behavior towards me.

[Howlin]

On "Good Morning America" today, two of the jurors in the case refused to second-guess their verdict. Rosemary McMahon, Stewart Jury Forewoman: "The verdict, I think, we reached after careful consideration of everything that we had: All of the evidence, all of the testimony and a lot of talking."


Amos Mellinger, Stewart Juror: "I thought since she had the best legal team she could put together, both of the defendants did, and if that is the strategy they took, I wasn't going to try to second guess it."

Experts we spoke with say grounds for appeal are extremely limited and so are her chances for success.
(Interactive: Timeline in the Case)

Alan Dershowitz, Legal Analyst: "In a case like this, it may be in the 20 percent range but it's certainly no higher than 20 to 25 percent."

http://abclocal.go.com/wabc/news/wabc_stewart_030804meeting.html

[Don Joe]

But I only went to law school and practiced trial law for near 20 years.

I taught a number of CLE classes on appellate civil procedure.

I don't have your tv watching experience.

Maybe you can watch ER and diagnose my heart ailment.

ROTFLMAO!