Defense Plays Dead

Prosecution scores even more points as Martha lawyers stumble to the finish line

Elizabeth Koch | February 25, 2004

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

Judge Miriam Cedarbaum begins the day with a promise: "We're very close to home plate, members of the jury." She rushes the attorneys through their remaining evidential requests before calling the final defense witness to the stand. Steven Pearl, an attorney who accompanied Stewart and John Savarese—Martha's corporate lawyer in 2002—to the February 4 SEC interview, is Martha Stewart's one and only witness. It seems Stewart's attorney, Robert Morvillo, assumes the single witness strategy is its own evidence, as if the prosecution's case is so paltry Martha's got nothing to prove. The tactic seems risky, especially considering the two strongest testimonies—that of Doug Faneuil and Heidi Deluca—both wounded the defense.

The jury may feel shortchanged.

Witness: Steven Pearl, a private attorney assigned to take notes during Martha Stewart's February 4, 2002 statement to the FBI and SEC. Pearl accompanied Stewart and John Savarese to the meeting

Prosecution contends that during the interview, Stewart falsely claimed she didn't know whether a record existed of the message Bacanovic left her on December 27. Since the FBI rarely tapes interviews—a practice that should itself raise eyebrows—Pearl's notes are Stewart's best weapon against the false claim charge. The neophyte lawyer testifies that his transcription "captures the substance of the interview, and some of the details, but is not a verbatim account."

"Did you record your notes in a database, Mr. Pearl?" asks defense attorney John Tigue.

"Yes, I typed them up in a memorandum, which I completed in full the following day—February 5, 2002." He says the memorandum is more comprehensive than the notes, since he was able to recall names and other details after the interview concluded.

Pearl seriously over-lawyers himself. When Tigue asks the witness if he remembers the question, "What time did Peter leave you a message on December 27, Ms. Stewart?" Pearl hems and haws and mutters about word precision, then finally admits to somewhat recalling the question but not Stewart's answer. He's more certain that John Savarese offered to look up the message in Martha's log.

Predictably, Pearl is even more hesitant on cross. Assistant U.S. Prosecuting Attorney Karen Seymour swanks herself up to the podium, flaring her dimples like she knows she's got him. Her first series of questions establish that Pearl's no note-taking expert, a fact he readily agrees to. She then enters into evidence the disputed portion of his records, comparing a line from Pearl's notes to a line from the memorandum:

Notes:

Q: When did Peter call?

A: —— log that Peter carried?

Memorandum:

AUSA: At what time had PB left a message for MS to call him on December 27?

MS: Does not know. JFS to send them the phone log.