You're Next!

New at Reason: First they came for the jet-setting socialites… Elizabeth Koch wraps up the Martha Stewart coverage with a chilling consideration of why the rest of us ought to be afraid.

Comments

[critic]

Yet another example of why we all should fear a jury of our "peers."

[The Lonewacko Blog]

Martha is nouveau riche. She might have had a big house near Rockefeller's estate on MDI, she might have jetsetted around the world, but she was still just lower-middle-class (?) with money. If she was really a member of the elite, she wouldn't have been touched. Not that I know anything about how rich people work, but I have read books and I've seen WASPs on TV.

I'm sure lots of people have lost money on her stock because of the verdict. However, I don't think their losses will be in vain. If, gosh forbid, Rosie should start her own company, they'll demand that she keeps on the up and up.

[Shannon Love]

I'm really beginning to wonder if we can fairly or accurately conduct trials of celebrities at all. The recent history in this regard is not reassuring.

[Rick Barton]

Justice to "set an example" or to "send a message"
is no justice at all. It's a travesty of justice.

Shed a tear for Martha. Cry a river for our republic.

[Skip Oliva]

The problem I see is that the lesson of the Stewart trial can be learned from dozens of cases where the Justice Department abused its discretion, lied to federal judges, and otherwise acted like the proverbial jack-booted thugs. Those cases get no attention, however, because they lack a celebrity defendant. In truth, the government destroys the lives of middle class and "regular" people with astonishing frequency. But few are paying attention.

[Ernie Longmire]

Yes, horrible horrible stock losses. Why, MSO is all the way back down to where it was trading . . . three months ago.

[Jim Walsh]

The defense obviously dropped the ball in offering only one witness and keeping Stewart off the stand. It would seem they botched it on the voir diere as well.

[Walter Wallis]

A billion dollars of Martha Stewart shareholder value will go down the drain. Earlier, a hundred billion dollars of Microsoft shareholder value went down the drain, including 4000 dollars of my daughter's money, - both losses in the name of protecting the little people.
At the same time, CEO's, emboldened by laws that allowed Golden Parachutes and poison pills, acts that allowed management to flip off and loot the shareholders, went unchallenged.
Lord, protect me from this protection.

[Ruthless]

"Elizabeth Koch lives in New York city. She sincerely hopes to complete her MFA in creative nonfiction by the end of May. Or August. "

Elizabeth will hit the ground running in creative nonfiction fer sure.

Martha is a liar!

If Martha's example eliminates one lie in a million, will not the world be a better place?

Understand, I'm not a Martha-hater or envier. I watched her TV show when I could, and my wife and daughter subscribe to her magazine: two subscriptions. I'll never forget her whipping out a torch to quickly remove a metal mold from an ice cream dessert concoction.

Agree the message that "lying is not a good thing" is lost when the exposer is the biggest liar of all: gummint. But "lessons" are where you find them. Sigh.

[Andrew Lynch]

Conspiracy theorism at it's finest. Go Reason. :-/

[Rick Barton]

To see how far we've gone in the direction of tyranny, note that the actual words of the founders of our republic had led to a straightforward, and previously operable, interpretation of arrest law that said that resisting arrest is only illegal if it turns out that the person being arrested is guilty of the crime that they were arrested for. If not, it's a false arrest. (see the thread: "are cops unconstitutional?")

Martha wasn't under oath and was charged and found guilty of lying to the government about a matter she was never even charged with! (insider trading). Also note; Clinton lied under oath, yet he was never even charged with that crime.

[Rick Barton]

Here is the thread and law review article; Are Cops Constitutional?:
http://www.reason.com/hitandrun/003780.shtml#003780

[The Lonewacko Blog]

The Lonewacko Blog would like to make clear that it agrees that this is selective prosecution run somewhat amok. The Lonewacko Blog is simply providing additional information.

Some additional information: back when she was to go public, I believe I read articles where people asked "what happens to her company if something happens to her?" I believe there was also a disclaimer in her prospectus saying that the company was based on one person's vision.

Maybe someone could write an article about how those warnings have come true.

[PapayaSF]

Sorry, Martha gets no sympathy from me, and I say that as someone who had no animus toward her before all this. I won't go into all the reasons, but let me gripe about one thing her defenders always bring up: "But she wasn't even charged with insider trading!" True, but so what? Prosecutors often don't charge perps with crimes they know the perps committed, because the prosecutors don't think they can prove it in court. Remember, all they could prove Al Capone did was evade taxes.

[Homer]

Thing is, the fact that she wasn't charged with insider trading really makes all the other charges moot. Being charge with lying to cover up a crime you aren't charged with (and arguable did not commit) is clearly bogus.

I'm not a huge fan of her, either, but this was a bad case by any reasonable interpretation.

BTW, as far as lying to government officials go, as far as I'm concerned, it's your civic duty to lie to them, because they sure as hell are lying to you.

[Rick Barton]

PapayaSF:

"Martha gets no sympathy from me..."

By the government's admission, they didn't charge Martha with insider trading because those laws didn't proscribe her activities in the sale of her Imclone stock!

It seems that we should be sympathetic to all victims of wrongdoing. Regardless of weather they suffered at the hands of criminals or the government.

[Scott Harris]

I think it is overreaching to assume that a jury would convict a "normal" American for the offenses of Martha Stewart. If your account of the case is accurate, then I even think it is likely that her conviction will be set aside, and she will be retried.

I have not followed the case, but as you suggested, I have little sympathy for Stewart. The sentiments of the jury indicated that they wanted to punish her for her arrogance and disdain for common people. The risk that a jury would adopt the same attitude toward a common person is remote. Indeed, the risk that a prosecutor would even waste his time with such a case is remote.

Like it or not, Martha Stewart became a proxy for the indulgences of corporate leaders who ran roughshod over the interests and concerns of normal Americans. This verdict send a clear message to corporate America that they must be held to account. Whether or not Ms. Stewart deserved to be found guilty in this particular case, the message of corporate accountability needs to be learned by executives.

Unlike Martha Stewart, and others like Bill Gates, Ross Perot, and Steve Jobs, most corporate leaders are simply unusually well paid employees. This elite group sits on each others boards, rewarding each other with outlandish compensation plans that effectively steal wealth from both the owners (stockholders) and employees of the companies which they run as their own personal piggy banks.

Martha Stewart is unfortunate that she got caught in this mess. But remember, she is not in trouble for messing with her own company, but for using her position to gain unfair advantage in investments in another company.

It is inconceivable that an average American could have a "verbal" agreement to sell a stock at a certain price point without a firm stop-loss order in place. I know; my wife's brother is the compliance officer (VP) at Southwest Securities, and he will not give me, his brother-in-law any advantages whatsoever. Part of his job includes voiding profitable trades by employees of his company which might, might be interpreted as shady. To avoid even the appearance of impropriety, I use a different broker. My wife also works as a CPA at a large investment firm, and our personal investments are closely monitored by the corporation.

It is inconceivable that an average American could hob-knob with Sam Waksal and have potential access to inside information. So in a real sense, Stewart is being punished for giving the impression that she, like so many other corporate executives, believed and acted as if she DESERVED special access, and special consideration - that somehow the law did not constrain her, but only existed to serve her selfish needs.

To extrapolate the punishment in this case to cases involving ordinary Americans is not realistic. Because normal ordinary everyday Americans would never be in the position to even do what Martha Stewart did, regardless of whether or not it was technically legal or not.

If Stewart is innocent, then I hope she is ultimately exonerated. But the fact that she was once a stock broker, and the fact that she sat on the Board of Governors of the New York Stock Exchange implies a higher responsibility than mere technical legality. To whom much is given, much is required. Stewart owed her stock holders, and indeed all investors in NYSE traded stocks a higher degree of responsibility and accountability than ordinary investors.

Instead, she used her position of privilege to short-cut the normal trading process. Whether or not that was legal, it was certainly wrong. And yes, given her experience and position, she should have known better. Indeed she probably DID know better. She is being punished because she just didn't care. She treated the public trust as a personal possession, and that is in itself contemptible.

[Patriot]

?Like it or not, Martha Stewart became a proxy for the indulgences of corporate leaders who ran roughshod over the interests and concerns of normal Americans.?

If by normal Americans you mean individual investors then I would suggest not investing in such companies. Account for such facts in your analysis of the stock prior to purchasing it. Put your money in index tracking funds to minimize this effect in general. Put your money in CD?s or a savings account or loan it to individuals you ?trust? for a higher rate of return.

?most corporate leaders are simply unusually well paid employees.

This is simply untrue. Saying that Warren Buffet is just another well-paid employee is wrong. These executives generate significant wealth through prior success, experience, and reputation, not to mention their leadership. This is the market price these companies have placed on the CEO?s labor. Additionally, further government regulation surrounding the responsibilities of executives only stands to drive up such wages.

?Part of his job includes voiding profitable trades by employees of his company which might, might be interpreted as shady.?

Do you not find this to be overall detrimental? Trading freely is a huge part of the flow of capital in a free market. If every trade we have to make must be analyzed for legitimacy, this deters the free flow of funds. This is one of the primary reasons insider-trading laws are counterproductive. The less you know about a company the harder it is to properly value it. If executives are afraid to trade their shares (insider trading laws) or disclose information (Reg FD) or provide outlook (shareholder litigation) or put their freedom on the line for financial statements (Sarbanes-Oxley), less information will be available for normal Americans to make their decisions.

[Critic]

What's with attaching "roid" (libertroid, Randroid) to a group of individuals you happen to disagree with? Regardless of their disparate ideologies, posters to this space are not cultists. Could it be that the name-callers have a self esteem problem? All objectivists are not "Randroids", whatever that is.

[Scott Harris]

Patriot,

Warren Buffet does not fit within that group of "glorified employees." He started and built Berkshire Hathaway. I do not have a problem with acquiring great wealth. But my experience is that entreprenuers are almost always more concerned about the individual welfare of their employees than those who simply rose through the ranks of a competitive corporate advancement system.

The current system of competitive executive compensation has devolved into a system of one-upmanship. There is no rational excuse to compensate Michael Eisner 500 million dollars. The government tax structure that encourages stock options as a preferred form of payment should be revised.

Also, executives have a moral obligation to abide by stricter standards than others. I am not suggesting a bevy of new laws. But the greater principle involved is justice. At best, the law is an imperfect attempt at providing justice. That is the beauty of the jury system. In this case, the jury delivered a verdict they thought was just, whether or not it bears up to legal scrutiny.

Whether or not Ms. Stewart fulfilled the technical requirements of the law, the jury believed that she violated both the spirit of the law, and her greater responsibilities to the general public due to her position. As I said, if she did not actually violate the law, then I hope she is exonerated. But I will not shed a tear over the destruction of her wealth, position, power, and privilege; because, by all accounts, she abused them.

[Patriot]

Not sure how to respond to your Buffet comments. You're right he did start the company; however, all Berkshire does is buy or invest in existing companies. I?m not sure why he would be ?more concerned about the individual welfare of [his] employees than those who simply rose through the ranks of a competitive corporate advancement system.?

My point was this ? what do you think would happen to Coca Cola?s stock if they hired Warren Buffet tomorrow? I would venture a guess that its market cap would increase a couple of billion dollars. Whether or not this increase is justified is not the issue in this thread. The issue is that these executives have the ability to create significant amounts of wealth; therefore the money follows them.

I agree that the tax code needs to be changed to account for option compensation. Might I recommend a flat tax of 10% and sharp decrease in government spending? 😉

?But I will not shed a tear over the destruction of her wealth, position, power, and privilege; because, by all accounts, she abused them.?

Then perhaps you will shed a tear for all the shareholders employees and consumers of her company who will find out just how valuable she was. All this over a $51,000 capital gain. It?s quite tragic. I too wish she had showed more foresight.

[Scott Harris]

Patriot,

You make my point. Her recklessness in her trading has resulted in the destruction in value of what, by all accounts, was a decent profitable company. She failed to fulfill her fidiciary obligations to her stock holders by failing to discipline herself in her trading in other companies.

By way of example, I am a married man. I refuse to even flirt with other women. Also, I will not spend any extended time alone with another women without some type of chaperone. The point is not that I am an uncontrollable letch who cannot trust myself in the company of women. The point is that my obligation to my wife requires me to avoid situations where I might even be tempted, and also ensure that salacious rumors do not get started because of any actions on my part. My "legal" obligation is fidelity. My moral obligation is greater.

I have no sympathy for those who tiptoe down the lie between legal and illegal, and then self-righteously claim moral superiority. My greater point in commenting on the article is that I do not believe this case has dire consequences for the general public. The motivations of the prosecution and jury are clearly specific to the abusive and irresponsible behavior of someone in a privileged position. This does not extrapolate to the greater public.

[KJ]

"Regardless of weather they suffered at the hands of criminals or the government"

Or at the hands of the criminals who apparently run much of what passes as government today.

But there is a lesson in this: refuse to cooperate with any federal investigation, however peripheral and safe you might seem and even if you are sure no crime has been committed. Make them come back with a subpoena and make sure you have your lawyer on hand, and, of course, be careful about your choice of lawyer.

[kohlrabi]

Indeed be very very careful about your choice of lawyer!

In a Wall Street Journal op-ed Alan Dershowitz notes that virtually every action for which Ms. Stewart was convicted took place after she had consulted with highly experienced and expensive lawyers:

"Defendants ordinarily retain lawyers after they commit their alleged crimes. In contrast, all the crimes charged against Stewart were allegedly committed while she was receiving the advice of excellent defense lawyers at Wachtell, Lipton, Rosen & Katz -- supposed to be one of the nation's best law firms. The job of these lawyers was to keep their client out of any further legal difficulties. In doing this job, no lawyer should ever accept a client's initial account, especially if it is not corroborated by hard evidence. Every lawyer knows that "many clients lie even when they have nothing to hide." Even if the lawyer believes his client is being truthful, he should not allow the client to relate an uncorroborated account to law enforcement officials, unless the lawyer is absolutely certain that the account will not be subject to challenge by the government. Yet Ms. Stewart's original lawyers allowed her to make the statements to law enforcement officials that formed the basis of her convictions. It was these lawyers who then recommended her trial lawyer, Mr. Morvillo. ("We decided to add him to our team.") According to several lawyers familiar with New York practice, Mr. Morvillo and Ms. Stewart's original lawyers are part of the same "old boy" network of former New York prosecutors who sometimes refer cases to each other. It was Mr. Morvillo who made the decision not to put on any case.

If the Stewart defense team had put on a more complete case, with or without her testimony, the entire story would have become a matter of public focus, to the potential embarrassment of her original lawyers. Whether this factor entered into Mr. Morvillo's decision not to put on a defense case will probably never be known.

There were certainly other more traditional reasons for making that risky decision; but since it turned out to be the wrong one, legal and ethical experts will surely pick up on Mr. Gillers' perceptive observation by asking whether Mr. Morvillo's decision may have been influenced -- consciously or unconsciously -- by considerations other than the interests of his client, Martha Stewart."

It's pretty obvious that Martha has been railroaded by a bunch of greedy lying lawyers who on top of everything had the gall to bill her $600 per hour.

[tortlawyer]

Ahh, there's a sweet smell of litigation in the air!

Surely Martha Stewart will sue Morvillo and Wachtell, Lipton for malpractice due to incompetence, negligence, and improper professional conduct, probably by retaining Dershovitz as counsel?

[kwais]

"Justice to "set an example" or to "send a message" is no justice at all. It's a travesty of justice."

Isn't that the purpose of all justice in a secular society? What other reason does justice have?

[ludovic]

kwais,

if you want "to send a message" you ought to go to Western Union.

The purpose of criminal justice in a secular society is to hold individual people accountable for individual breaches of regulations. To achieve this in a meaningful, non-arbitrary way nobody must be singled out or treated differently than other defendants in a comparable situation.

It's completely uncalled for the DOJ to single out a celebrity, "a person who is well-known for his or her well-knownness", to stage a specious drama, in the case at hand a trial that's not intrinsically significant but is created in order to make news and "to send a message".

[Stephen Fetchet]

Hmmmm... fascinating. Given the left-libertarian sensibilities of this place, I'm really surprised that Libertoids here are so willing to go to the mat for corporate crooks.

This is surprising to me, because in your local Safeway collects more information on you than the government does, and any given angry creditor has more power to screw up your life than your local U.S. Attorney.

And, for what it's worth, the deterrent value of high profile prowecutions is one of the legal philosophical justifications for putting people like Martha in the dock. Legal theorists of all political stripes cite to general deterrence as one of the justifications for all prosecutions; and one of the reasons justice should be a public, not private matter.

Given that prosecutorial resources are actually scarce (contrary again to the wildly paranoid ipse dixit assertions positing infinite government resources here) then selecting targets based on their publicity value and the resulting widespread deterrent effect seems like a good public policy choice.

If obstruction of justice and lying to SEC investigators are two crimes you have to stop, and you have limited resources, then selecting highly public targets for prosecution makes all the sense in the world. Especially when the case holds up on the facts. The DOJ wins approximately 2000 such "stand alone" obstruction of justice and perjury / false official statement convictions each year; the conviction rate approaches 100%, probably because the charges aren't thrown around lightly. Contrary to what the Clinton defenders loved to say, no, everybody doesn't do it (i.e. perjury in civil matters), and perjury doesn't usually go unpunished.

[jim]

She was probably guilty of one crime, which could not be proved, so they railroaded her for other nonsense. Shameful. But this article is filled with nonsequitors and is about as bad as anything the author is accusing the jury of.

[Patriot]

Stephen:

First of all, how is Martha a corporate crook? She did not commit insider trading (laws that only reduce information available to all investors). And she is not a member of ImClone?s management team or board. She was charged with lying to uphold the stock price of MLSO. So the story goes, she did nothing wrong, but she lied to cover up the appearance of wrongdoing, so she is a corporate crook. While I frown upon lying, I?m not sure I?m willing to make that leap just yet.

I think the issue here is that the government is trying to set up an environment where you must give unconditional cooperation (even if you are innocent) or we will ruin your life. The argument ?only the guilty have reason to lie or flee? is inherently short sighted. However, if the government gives you pause about your lack of cooperation for even a little bit, they have accomplished their goal. You?re absolutely right; the purpose of this trial was to set an example. The example is submit or be punished.

[Ironchef]

Stephen Fetchet - lies. All lies.

That's the most contrived piece of apology for jack-booted lawyers yet.

[rst]

willing to go to the mat for corporate crooks.

The question, step, was whether she was a corporate crook. She wasn't convicted of being a corporate crook; "conspiracy" is a sexy word but it applies to two taxi drivers who conspire to beat up another, too, not just white collar folk. In the case of her stock sale, she acted on hearsay, not first-hand insider information, and the particulars of the case were based on the fact that she reacted afterwards as though she began to fear prosecution. She created the suspicion of guilt, and the government saw fit to prosecute her for it. They contend she lied, but they don't know what the truth is in contrast to her story - what they suspect that truth to be, e.g., sec. fraud, they couldn't even charge her with. They contend that she conspired to cover up the story, but really all they have is the advantage that at the time none of them likely felt it was important enough to commit to memory in any kind of orderly fashion. The gov't won because the Stewart defense gambled on a single witness, not because their case had merit or veracity.

I'd like to make it clear that I don't like the bitch. She bashed my hometown, so she can get toxic shock from a guard baton for all I care. But I do tremble at the precedent. Had she been acquitted they'd probably have thrown her in Camp X-Ray just to make their example.

[Jose Ortega y Gasset]

I might have an opinion on the Stewart case, if only I could avoid becoming distracted by Koch's profoundly annoying style of writing. Perhaps I am the only person who cringed reading the phrase, "...and friendships buckle like old tuxedo shirts." Ouch! Most of the article sounds like breathless stream-of-consciousness scribbling. Sorry, Reason editors, I know the Stewart case was timely and a "ratings grabber," but Koch's writing was below the standard I expect from your publication.

[rst]

perjury doesn't usually go unpunished

The decision in Roe v. Wade was based on McCorvey's perjured testimony.

Safeway collects more information on you than the government does

I don't mind that Safeway and creditors collect information on me. The government is another story. I am protected - theoretically, legally and to a lesser extent by the nature of the open market - from businesses grossly misusing that information. I am also protected by the fact that the scope of what businesses can do with that information with respect to my life, liberty, and happiness are limited. Not so with the government.

Given that prosecutorial resources are actually scarce...
...obstruction of justice and lying to SEC investigators are two crimes you have to stop

Are they? I'd say our limited resources would be better directed at crimes which actually have some impact on our society and economy. All those ImClone investors lost out anyway, and to no greater or lesser extent than had Martha not been involved in the equation at all. The gov'ts net action was simply to screw over MSOM (that the abbreviation?) shareholders and throw some dumb broad in jail for acting funny.

[Rick Barton]

Stephen Fetchet:

"I'm really surprised that Libertoids here are so willing to go to the mat for corporate crooks"

Hey Stephen, fetch this. It's called principle. You don't see a lot of sympathetic lines being written in these quarters for the likes of Sam Waksal. But, principle keeps thoughtful folks from relegating Martha to the status of a " corporate crook".

"your local Safeway collects more information on you than the government does"

What constitutes "a lot more" is hard to define, but there are huge differences here. We voluntarily patronize Safeway and they use the records of our purchases to offer more products to us that we might like to buy. The government demands information from us concerning our income and the value of our property so that they can take our money and control our lives. Also: Patriot Act...book purchases...library records.

"any given angry creditor has more power to screw up your life than your local U.S. Attorney."

Ridiculous! The US Attorney has real "power". Bring criminal charges against one "screws up their life" rather more than does, incrementally hurting his/her FICA score!

"selecting targets based on their publicity value and the resulting widespread deterrent effect seems like a good public policy choice."

What?? That leads to "targets" like Martha who have harmed no one, while real crooks with less "publicity value" go free. Also, an individual's liberty is not supposed to be discounted in order to achieve general public compliance. That's totalitarian and crazy!

"Contrary to what the Clinton defenders loved to say, no, everybody doesn't do it (i.e. perjury in civil matters"

You won't find many Clinton defenders among the folks here who find Martha's prosecution repugnant. Martha wasn't under oath and was charged and found guilty of lying to the government about a matter she was never even charged with! (insider trading). Clinton lied under oath, yet he was never even charged with that crime!

[Joe]

To my simple mind this only proves two points. It is almost impossible to find a jury with enough common sense to render anything resembling a reasoned verdict. The government has all the cards stacked in their favor and they damn well know and take advantage of this.
I was on a grand jury for three months and constantly found myself at odds with other jurors and prosecutors. Most of the jurors just voted with the majority and thought more about when we were going to lunch than whether the prosecutor had any real evidence on the accused. Prosecutors would bring ten or more charges against nearly every accused person hoping one or two would 'fit' with the jury.
As much as I don't trust judges, I trust juries even less. The average juror is an ass.

[Scott Harris]

My point on morality was that she did not have my sympathy. I have already said twice that if she is indeed innocent, then I hope she will be ultimately exonerated.

BTW, there has Never, in the History of mankind, been a single law on the books that was not based on morality. The only question is the source of morality, not whether laws are based on them.

As to my comment, I was trying to say that Ms. Stewart had a moral obligation to her shareholders, not the government, to avoid situations that might negatively impact the value of her company. She obviously failed in that obligation to her shareholders.

I didn't follow the case closely enough to make any comment on the fairness or unfairness of the verdict. I don't have any personal axe to grind with Ms. Stewart. At the very least, she was unwise in her choice of friends. I tend to believe she cut some corners, but have no insight on whether those corners were legal or illegal.

To use a different analogy, all of us have had moments of inattention while driving a car. Sometimes those moments combine with other events to cause an accident, even fatalities. You are still culpable in that case. And Ms. Stewart is culpable for the drop in the value of her stock. As CEO, the buck stops there. Its part of the job. And she has failed her stockholders by even getting caught up in the mess.

[rst]

recklessness in her trading ... My "legal" obligation is fidelity. My moral obligation is greater.

There is no legal punishment for violating or appearing to violate your moral obligation. That is why we have laws in the first place, to define the bounds of what is and what is not illegal. You speak ill of making the distinction, yet legality and morality are distinct and separate entities with little to no autocorrelation. It is highly arrogant to think your laws are moral, and it is the zenith of arrogance to think your morality is law. Highlighting that separation is all that keeps inherently aggressive prosecutors from extending the application of law - hopefully clearly defined by its language - into the tenuous moral regions where the language does not go. There is no "moral" superiority in this issue. Either she broke the law, or she did not. It is the purpose of the court to make that finding, by the use of a dumbed down jury of one's intellectually void peers and legal teams who took post-graduate college courses on how to construct and manipulate said juries. Justice is a rhetorical exercise; to try to correlate the process back to some fuzzy notion of morality is futile.