Was Stewart’s Dream Team a Nightmare?

Martha Stewart is almost certainly going to prison because of her lawyers. It’s really as simple as that.

Every act for which she was convicted was committed after she retained some of the fanciest lawyers in New York. These lawyers let her walk into perjury traps and obstruction-of-justice charges by encouraging her to speak to prosecutors rather than insisting that she remain silent.

Now some members of her legal team have apparently been leaking information designed to show that the conviction was her fault, that she was guilty and should have accepted a plea bargain. With defense lawyers like that, who needs a prosecutor?

In fact, the only lawyers who have helped Martha Stewart -- albeit without intending to -- have been the prosecutors, who acknowledged that one of their expert witnesses, a handwriting analyst, had himself lied. But because this information was candidly disclosed by the prosecutors rather than discovered by Stewart’s defense attorneys, the effect of this information has been blunted.

The reality is that Stewart could easily have avoided prison if she had simply kept her mouth shut -- as she had the constitutional right to do -- after the investigation began.

Her decision to sell stock, allegedly after learning that the corporate insiders were dumping their own, was not a crime. She was never charged with insider trading. Her alleged crimes occurred only when she tried to explain her actions, after conferring with her high-priced lawyers.

Her lawyers, who are former prosecutors, probably thought that by taking their client in to speak to the prosecutors she could talk her way out of a jam. Instead, she talked herself into a conviction.

Stewart’s lawyers have been roundly and justly criticized in the media, both for their conduct leading up to the trial and for the manner by which they conducted the trial itself, barely putting on a defense.

The lawyers have been trying to spin the story in the press. Jeffrey Toobin, in a New Yorker article, says he learned from a disclosure made by someone who attended a privileged meeting between Stewart and her lawyers that it was Stewart who foolishly turned down a plea bargain offered by the prosecution and recommended to her by her brilliant lawyers. This certainly suggests that her own lawyers thought she was guilty because it would be unethical to advise her to make a false “allocution” in court admitting guilt to a charge of which she was innocent.

The article says: “According to someone at the meeting, [Robert] Morvillo, [John] Savarese, and [Lawrence] Pedowitz all told Stewart that she would never get a better deal. A trial was a risk. No doubt a felony plea would complicate her role at her company, but the alternative -- indictment, trial and possible conviction of multiple felonies -- was far worse. But again Stewart said that she couldn’t do it.”

This may have been sound advice, but lawyers who give confidential advice have no right to leak it to the press. If the Toobin account is accurate, we have to ask: Who benefits from the disclosure? Certainly not Stewart, but definitely the lawyers who recommended what in retrospect seems like a better course than the one she followed.

Moreover, Toobin tells us that Morvillo -- her chief trial lawyer -- had an interview with him “after the trial.” Throughout the New Yorker article, Toobin’s article gets inside Morvillo’s head: “So Morvillo couldn’t call Stewart, couldn’t call character witnesses, and couldn’t call anyone to verify Stewart’s preexisting agreement with [her stockbroker and co-defendant Peter] Bacanovic to sell ImClone at $60 -- because, as was increasingly apparent, they had no such agreement.” This too suggests that Morvillo believed that his client was guilty.

It may be understandable why a prominent lawyer whose client has rejected his confidential advice would want to be vindicated in the court of public opinion -- in this or in any other case. But, nevertheless, it is unethical to disclose such privileged information except under very specific circumstances -- for example, with the client’s express approval.

When Stewart is sentenced, her lawyers will be standing at her side. But were they on her side when it really mattered? Stewart will probably be asking herself that question if she serves a prison term she could easily have avoided.