Martha Stewart was convicted today of conspiracy, obstruction of justice and making false statements in connection with the sale of her shares of ImClone Systems in 2001. The jury in Manhatten Federal District Court also found Ms. Stewart’s stockbroker and co-defendant, Peter E. Bacanovic, guilty of the same charges and an additional charge of perjury.
Turns out that I was wrong in my prediction that Martha would be acquitted, although the decision to have Martha not testify was a risky move. However, as Professor Stephen Bainbridge explains here, this prosecution of Ms. Stewart was a stretch from the beginning. Indeed, if sound prosecutorial discretion had been used, the prosecution would never had been pursued. Unfortunately, Ms. Stewart’s celebrity status worked against her in that regard.
Over the past several weeks, I have had many discussions with friends regarding my position that the Stewart prosecution is wrong. “Why shouldn’t she be prosecuted,” my friends observe. “She is a liar, she apparently is abusive to her employees, and she probably did something illegal. Why do you support her?”
In explaining my position, I have pointed my friends to an insightful scene from the wonderful 1966 movie, “A Man For All Seasons.” In a scene from that great film, one of Sir Thomas More’s apprentices — Richard Rich — confronts Sir Thomas while Sir Thomas is conversing with his wife, daughter, and his daughter’s fiancee, Will Roper (an aspiring lawyer). Rich begs Sir Thomas for a political appointment, which Sir Thomas proceeds to refuse because he knows that Rich is prone toward corruption and would never be able to resist the bribes that he would be tempted to take in such an appointment (Sir Thomas thought Rich should be a teacher). After an embittered Rich leaves Sir Thomas and his family to take a political job with Thomas Cromwell, who has been ordered by King Henry to pressure Sir Thomas to take the King’s oath forsaking Catholicism and the Pope, it is obvious to everyone that the resentful Rich will ultimately betray Sir Thomas, which indeed he does later in the story. That leads to the following dialogue:
Lady Alice (Sir Thomas’ Wife): “Arrest him!”
Sir Thomas: “For what?”
Lady Alice: “He’s dangerous!”
Roper: “For all we know he’s a spy!”
Daughter Margaret: “Father, that man is bad!”
Sir Thomas: “There’s no law against that!”
Roper: “But there is, God’s law!”
Sir Thomas: “Then let God arrest him!”
Lady Alice: “While you talk he’s gone!”
Sir Thomas: “And go he should, if he were the Devil himself, until he broke the law!”
Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
Roper: “Why, yes! I’d cut down every law in England to do that!”
Sir Thomas: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down–and you’re just the man to do it, Roper!–do you really think you could stand upright in the winds that would blow then?”
“Yes,” Sir Thomas concludes: “I’d give the Devil the benefit of law, for my own safety’s sake!”
But for Martha Stewart’s celebrity status, this case would not have been brought against her. That she is a celebrity should not have prompted the prosecution. I am hopeful that this conviction is reversed on appeal, not only for Martha’s benefit, but for ours.
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