Cop Finds Needle in Needlestack

Jurors catatonic as FBI drone reads over phone records: Martha gets more bad news

Elizabeth Koch | February 17, 2004

These are Elizabeth Koch's notes on the Martha Stewart trial.

Judge Miriam Goldman Cedarbaum spent the bulk of today indulging circular arguments. Before trial began, lead prosecutor Karen Seymour asked for permission to take the jury through phone records made between Peter and Martha from December '00 to Feb 4, '01. The judge said she is allowed to summarize voluminous records, but that she cannot pick a particular day or a specific phone number and infer meaning or context. That's her ruling, she repeated herself three or four times, but for some reason allowed Seymour to drag her into a cyclical debate. I say Seymour because on the occasions Apfel leapt up to contribute his two cents, Cedarbaum promptly ordered him down. For a while it seemed the judge wanted Seymour to change her mind, to convince her speculation's quite appropriate. If so, Seymour failed her. Cedarbaum reiterated, "I'll permit prosecution to submit records that show Martha and Peter spoke more frequently on a particular month, but you're not allowed to urge the jury to infer 'conspiracy' from the number of calls they exchanged on any one day."

"But judge," Seymour said, leaning forward from the waist, as if inclined to grab Cedarbaum's shoulders. "I'm trying to prove that Bacanovic and Stewart did speak before Feb 4 [the date of Martha's first SEC interview].

"Morvillo—in his opening arguments—said, 'How'd they conspire? By means of osmosis?'" she mimicked, sneering and tossing her head from side to side like a schoolgirl. "But the records clearly show that they did in fact speak, on more than one occasion."

"But you cannot infer what they discussed." Cedarbaum smiled slightly, seeming amused by Seymour's passionate display.

Apfel, no doubt sickened, burst through their bond to speak for Morvillo, "Your honor, the dates Mr. Morvillo referred to in his opening arguments were from Dec 28 to Jan 7, not all the way through Feb 4." In fact, he argued, the two spoke so frequently that any discussion of phone records is irrelevant and can only leads to conjectures. "Mr. Apfel, are you going to argue to the jury that Bacanovic and Stewart made lots and lots of calls to each other in the month of January? Enough!" She shouted, cutting him off. "We'll discuss this further at the next break." She paused, then added, "I have enormous confidence in juries. They follow my instructions very conscientiously." How dare he suggest otherwise.

Witness: FBI phone record analyst, Agent Ryan

This guy could've been plucked from the set of Law and Order. His features were fairly nondescript—blond, close-cut hair; frat-boy face (arrogant but otherwise ordinary)—but his expression and attitude an utter stereotype. Shachter asked Ryan what role he was assigned in the ImClone trade case. "I was asked to isolate phone calls made between the parties who performed suspicious trades on December 27." His voice sounded funny, like he was forcing it an octave deeper than natural; his head tilted downward, his eyes peered upward; one eyebrow remained raised. His look said, "Come on, fella. Get with the program."

And with good reason. Cedarbaum scolded Shachter four times in ten minutes, cutting him off at each instant:

"Speak into the microphone, Mr. Schachter."

"You instructions to the jury are too confusing."

"Do you want to enter the document into evidence (or what)?"

"Wait until I find where you are!"

Shachter took Ryan through each call made on the morning of Dec. 27, a mind-numbingly long list, with the seeming objective of verifying Faneuil's assertions. But as Cedarbaum repeatedly stated, a phone call alone—no matter when it was made—proves nothing about content. To my mind, Faneuil's flawless memory of Dec 27 only really confirms he was well-coached by the prosecution.

I should add here something about the jurors: they quite clearly adore the judge, and she dotes on them. She steam-rollered over Shachter today, taking it upon herself to explain the phone log notebook he put together, to announce the page numbers when Shachter failed to, and to require the witness to clarify the layout of his phone chart. Each time Cedarbaum addressed the jurors, they broke into a group grin; never did they turn a page or move a muscle until Cedarbaum instructed them to do so. She respects them, looks after them, reminds them how important their jobs are. I cannot overstate: They love her.