When Silence Isn’t Golden

According to some of the jurors in the Martha Stewart case, they hoped their guilty verdict would send a message to the rich and powerful. It is more likely, however, to send a message to a much smaller group: Stewart’s co-celebrities facing trial for crimes ranging from murder to rape.

Stewart is vivid proof that the price of silence for a celebrity defendant can be conviction. For, say, Kobe Bryant or Michael Jackson, the Stewart trial offers a textbook example of how not to construct a defense.

The decision not to have Stewart testify in her own defense followed a conventional strategy. Defense lawyers are risk-averse; they usually prefer to play the cards they have rather than risk giving the government a better hand. Silence is a strategy that is normally adopted when you are more concerned about losing rather than gaining ground.

In this case, however, they held a bad hand. The trial was not going well. The defense had failed to significantly rebut the testimony or the credibility of key prosecution witnesses, and, by the time the government closed its case, the odds of a conviction were high without a dramatic change -- a witness who could reshuffle the deck. There was only one possibility, and that was Stewart herself.

Having Stewart testify would clearly have been a high-risk move, the ultimate legal Hail Mary pass; it might have yielded a hung jury, with one or two jurors willing to hold out against conviction.

Stewart’s lawyers had obvious reasons to keep her off the stand. They wanted to avoid the personal and professional embarrassment of a cross-examination and, particularly, a cross-examination disaster. She would have faced a series of extremely difficult questions: For instance, why did she change a critical computer message from her broker and then change it back?

More important, Stewart had been portrayed as a petty tyrant, a boss with a nasty side who relished every vice of power short of beating her underlings with a riding stick. To the jury, she was worse than a stranger; she was a menace. If those personality traits appeared on the stand, she might assure her conviction.

A trial, however, isn’t about the defendant but about the jurors, and jurors want to hear from the accused. They often view themselves in the shoes of both the victim and the alleged perpetrator. They want to know why an act occurred, but, more important, whether they would or could commit the same act under such conditions. Stewart needed their empathy.

Of course, to successfully testify, the famously perfectionist Stewart would have had to reveal her vulnerabilities, her imperfections. For instance, was it a humbling level of understandable fear and confusion that caused her to change that computer message? In the days since the verdict, a few jurors have revealed that at various points they indeed felt sorry for Stewart. Her unwillingness to speak for herself surely prevented her from capitalizing on such feelings.

Stewart and her lawyers should have heeded history. Celebrity criminal defendants who have testified have done well. Indeed, their training and experience in maintaining public images can be highly effective on the stand. Fatty Arbuckle testified in his murder trial. He was ultimately acquitted after a series of hung juries. Errol Flynn testified in his statutory rape trial and was acquitted. Charlie Chaplin testified in his Mann Act trial and was acquitted. (O.J. Simpson didn’t, but then he was assisted by one of the worst prosecutions in history.)

The lesson of the Martha Stewart verdict may be most relevant for basketball star Kobe Bryant, who faces rape charges. In a he-said, she-said case, “she” will often win if “he” says nothing. To remain silent after the victim goes through grueling testimony can easily alienate a jury.

To testify or not to testify may be a more difficult question for Michael Jackson. There is no doubt that the jury will want to hear from him. However, because of his eccentricities -- his gender-bending persona, for instance, isn’t likely to resonate with an average jury -- his attorneys will be disinclined to put Jackson on the stand. The prosecution will surely portray him as a freak who abused children brought to him under the false inducement of care and sympathy. His silence would leave such images largely unchallenged. Watch for the defense to attack the victim’s mother with particular viciousness, trying to reduce the need to put Jackson on the stand.

In retrospect, there is an ultimate irony in the conservative defense strategy adopted by Stewart and her lawyers. As one of the nation’s most successful businesswomen, Stewart was known for her aggressiveness and boldness in the marketplace. She made more than a billion dollars selling herself to strangers. Yet that chutzpah failed her when it counted the most: when she didn’t take the opportunity to sell herself to a jury.

For defense lawyers and defendants, the court record -- Martha Stewart Litigating -- should be required reading in the months to come.