Seymour's goal is to punch holes in Pearl's accounts: if the jury believes that the question posed to Martha concerns the time of Peter's message rather than its general existence, the government's false statement charge turns to dust. She riddles Pearl with queries: did he record every question; is he certain of Martha's response; how could he possibly piece anything together at this late a date. He concedes her every point. Wimp.
Seymour, seeing he's an easy target, hits harder: "Mr. Pearl, regarding the question mark that follows '...Get phone log Peter carried.' Couldn't it mean there was some question about the existence of a phone log?" Pearl seems skeptical, but doesn't disagree. "Isn't it true that you don't know who suggested that Savarese 'get the phone log'?"
He hesitates, then grants that as well.
"Is it fair to say that today, based on these notes, you don't know if Ms. Stewart knew the phone message existed?"
Pearl starts to speak, pauses to reflect, then concedes. "I'm not sure." Not a stellar testimony, but you never know: Te young lawyer's triple-time deliberations could work to the defense's advantage. If he's that nitpicky on the stand, the jury might conclude he attended to his memorandum with the same diligence.
Witness recall: Larry Stewart, the Secret Service's chief forensic scientist. National ink expert
Two days ago, when Larry Stewart's rival and one-time boss, Dr. Albert Lyter, testified for the defense, Stewart was there to watch. The self-proclaimed ink king sat with folded arms while Lyter explained the results of his densitometer testing, sighing and rolling his eyes when Lyter concluded that at least three pens were used on Bacanovic's "@60" document. And here he is, back on the stand, all geared up to rebut. "The numbers Lyter generated don't make sense," he gripes. "When I tried to recreate his results, I found that if I manipulated the machine, shaking it and twisting it around, I could get the numbers to turn out any way I wanted." Is the mudslinging really necessary? It's hard to believe this guy's testimony is built on much more than ego.
In the end, Larry Stewart is forced to testify that although in his estimate only two kinds of ink appear on the page, it's possible the circles and checks came from multiple Bics. My conclusion certainly hasn't changed: the ink war is bogus. The fact that Bacanovic used more than one pen, like most mortals, is hardly the crucial evidence. If Cedarbaum's opinion is any indication, it's unlikely the jury will lean too heavily on either "expert" testimony—"Are we still on the ink?" she grouses after lunch.
The most damning evidence of the day comes last, in the form of an audiotape. Prosecution plays a few minutes of Bacanovic's February 14 interview with the SEC, the thrust of it concerning the content of Peter's conversations with Martha's Connecticut office business manager, Heidi Deluca. Bacanovic begins with a denial: "I would only speak of [Stewart] buying or selling securities in the context of tax planning." Not a contradiction: Yesterday Deluca testified that the $60 agreement came up during a discussion about tax-loss selling.
"Did you speak with [Heidi] about Martha Stewart selling ImClone stock?" the interviewer asks.
Peter explains the context in which ImClone came up. He says Deluca was frustrated they'd sold ImClone at a gain at the tail end of 2001. "She didn't expect me to add gains at the end of the year," he says, which again parallels Heidi's testimony.
The interviewer persists: "So she was wondering why you'd put in a gain right before the end of the year?"
"Correct," Bacanovic says. "And I told her what I tell all my clients: 'Gains are good.'"
When the interviewer gets to the $60 question, things take a wrong turn. "Did you talk to Heidi at all about, you know—once the stock hit $60, [Stewart] should sell?"
"I don't go into that level of detail with Heidi," he insists.
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