Martha Stewart Begins Prison Sentence

Law Professor and Former Federal Prosecutor and Communications Vice President
Friday, October 8, 2004; 2:00 PM

Martha Stewart is in prison. A spokesman for the U.S. Bureau of Prisons announced that Stewart entered Alderson Federal Prison Camp in Alderson, W. Va., this morning to serve a five-month sentence for her conviction on federal obstruction of justice charges.

Stewart Enters Prison (Post, Oct. 8)

University of Pittsburgh law professor and former federal prosecutor Sandra D. Jordan and Scott Sobel, communications vice president handling litigation and crisis media management, were online Friday, Oct. 8, at 2 p.m. ET and discussed the Martha Stewart case and her prison sentence. In addition, they will discuss a survey which shows that comments Martha Stewart made to the media could have had an effect on an appellate judge's decision or on how that decision is written.

Jordan served for almost 10 years as an assistant U.S. attorney for the Western District of Pennsylvania and eventually became in charge of the White Collar Crimes unit of the U.S. attorney's office. From 1988 to 1991 she was a member of the prosecution team in the Iran-Contra trial. She has been an instructor, lecturer and presenter on evidence, trial advocacy and white collar crime for practicing attorneys, judges, law enforcement officials and investigators.

Sobel's work has encompassed crisis counseling and consultation for a number of high-profile clients. He led a company team in Rome and the U.S. on behalf of an order of the Catholic Church, counseled Rosie O'Donnell during her magazine trial and has counseled corporate executives under government and congressional scrutiny.

A transcript follows.

Editor's Note: Moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Scott Sobel: Good afternoon. Thank you for asking me on the chat and giving me an opportunity to answer public relations and crisis communications questions concerning the Stewart case. The audience should know that I am answering the questions from the perspective of a public relations counselor who deals every day with "high stakes" communications for law firms and their clients but also from the perspective of a 20-year veteran journalist.

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Sandra D. Jordan: Hello, I am happy to participate in today's chat. Because I have handled white collar criminal cases as a former federal prosecutor, I am happy to take your questions.

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Alexandria , Va.: Is Martha Stewart at any risk of violence or assault in prison? I understand that Alderson is a federal facility, and that its inmates are generally non-violent women, but prison is still prison.

Sandra D. Jordan: I have handled white collar criminal prosecutions as a former federal prosecutor and currently I teach white collar crime.

Ms. Stewart will serve five months in the prison. While she is a prisoner at that facility, it is anticipated that she will not come into any situations that would cause her to be fearful of her physical safety.

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Buffalo , N.Y.: Are there any circumstances where an attorney would absolutely want his client to speak to the media? Conversely, any circumstances where an attorney would absolutely NOT want his client to speak to the media?

Scott Sobel:

As a litigation public relations counselor I always support the attorney's legal strategy and defer to their judgment about whether comments are appropriate. It is really a question where the answer depends on the individual case. You certainly don't want to antagonize the court, break any canon laws or bar rules but, if you can operate in a dignified setting, a client may want to humanize themselves in front of media audiences to support legal, business or other objectives.

It is a better calculated risk to work with a client who is used to public appearances and media settings but client comments must be very closely managed and there must be a reasonable assurance that the speaker will stay on message.

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Rockville , Md.: Did Martha Stewart's comments in the media influence the judge's decision or hurt her appeal? Is she going to jail because of her big mouth?

Scott Sobel: To answer that question,
Responding to a confidential survey of judges provided by an American Bar Association list, several judges conceded that comments made by defendant Martha Stewart after her sentencing for obstruction of justice could have had an effect on an appellate judge's decision or on how that decision is written.

It is a rare and probably unique admission by jurists, acknowledging the influence of the media on the adjudication of high-profile cases. A majority of the 64 appellate judges, trial judges, and lawyers contacted generally had faith in the system, and confidence that jurists are sufficiently insulated from outside influences like news reports.

However, the absence of unanimity is significant as it confirms a real potential for media impact at any stage in the progress of a case.

Of the 64 respondents, 36 said that, if they were appellate judges sitting on the case, they would "ignore" Stewart's comments in the media. However, 13 said they would be "mildly interested" and one would be "definitely influenced in one direction or another." (Two others said they would be "amused" and two said they would react negatively but not be influenced. Ten did not answer that question.)

"This survey makes it clear that defendants like Martha Stewart involved in high-profile cases take a big chance when they comment in public and need to weigh how individual jurists or audiences might react," said Scott Sobel, "Judges do react as people and do not always rule on just the record. Trial participants should only comment under circumstances where they are counseled by professionals."

The survey was conducted in July 2004 after Martha Stewart was sentenced to five months in prison, two years probation, five months of home confinement, and a $30,000 fine by the United States Court of Appeal for the Second Circuit. Respondents included 31 appellate judges and five retired appellate judges; seven trial judges; three appellate lawyers; two appellate court law clerks; and 16 others who did not include job titles.

The confidential survey was conducted after Stewart's post-sentencing comments, which included her stated intent to appeal, were published. Respondents were invited to include written commentary along with their survey answers.

Sixty judges agreed that it was inappropriate to be influenced by the media and that an appellate judge especially has a duty to decide only on material proffered on the record. But, as one judge responded and two other respondents agreed, if state appellate judges stand for reelection, there is a heightened possibility of an impact on them. "As to general [media] influence, it might make judges aware of the case, its implications," wrote this judge. "So, an opinion might be written where it might not in other cases. But, if the judges are true to their oaths, the result should be the same."

One respondent checked "Yes" to the question, "Are appellate judges likelier to be influenced by the media in cases where the defendants are, like Ms. Stewart, extremely famous?" This judge further commented that it is "harder [for celebrities] to escape the publicity, [which] may have either conscious or subconscious effect [on judges]. I would have counseled [Stewart] to be less combative and more apologetic." A total of six judges responded yes to the question.

By contrast, one respondent said, "Sometimes decisions should give some weight to policy issues and concerns and defendant statements may be useful. I think [Martha Stewart's appearance in the media] was necessary for her company and her future. Humanizing herself was extremely important."

Significantly, both these judges quoted -- one who would have cautioned restraint, and the other who thought Stewart's media appearance necessary -- believe that the appearance did, in fact, have impact for better or worse.

Even judges who themselves would not be influenced by the media aren't so sure about others. For example, retired appellate judge David Craig, who agreed to be identified, affirmed that it is "utterly inappropriate" for an appellate judge to be influenced by statements in the media. "But how does one know?" he added. "All contacts can have influence - [it's] unavoidable -- and one cannot be sure [if] a particular contact has an effect."

The study has a final significant implication for the entire judicial system. Appellate judges are particularly guided by an obligation to decide only on the basis of material presented in court. If, as the data suggests, there is the real possibility of extraneous influence here, how much more so with trial courts?

As one respondent commented, "media statements are a much more serious problem for trial courts because the media's penchant for overkill, exaggeration, and saturation often pollutes jury pools, to the detriment of all concerned."

"The primary lesson here is to always exercise caution and express respect for the court, even when you are not involved in formal court proceedings," said Dean David Herring of The University of Pittsburgh School of Law. "Lawyers and defendants take a significant and often unnecessary risk of judicial disfavor when they play to a broad public audience."

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Washington , D.C.: What did Martha Stewart say to the media, or that was reported in the media, that might have affected the outcome of her case?

Scott Sobel: I will comment on a few selected quotes from Stewart. She made these statements after her sentencing on the court house steps, during a Larry King interview and also referenced a Barbara Walters interview.

(Stewart after sentencing on court house steps)
Today is shameful day. It's shameful for me, and for my family and for my beloved company, and for all of its employees and partners. What was a small personal matter came -- became over the last two years an almost fatal circus event of unprecedented proportions. I have been choked and almost suffocated to death during that time, all the while more concerned about the well being of others than for myself, more hurt for them and for their losses than for my own, more worried for their futures than the future of Martha Stewart, the person.
Stewart is apologetic but initially but does talk about being "choked" and refers to the process as a "circus." It is unclear whether she is being demeaning of the legal process or the media process and certainly here statements might be taken out of context. In regards to those issues a judge could certainly hear that the defendant if more concerned with her own issues and does not respect the Court process.

If a defendant decides to comment before, during or after a trial, their words must be carefully crafted so each statement cannot be separated from others and there is a reduced chance of statements being taken out of context.

(Stewart's comments to Larry King)
KING: There were some criticizing for a remark you made, I think with Barbara Walters about comparing to Nelson Mandela. You want to straighten us out on that?

STEWART: Yes, I would like to straighten you out on that. Not you, but the press. What I said, Barbara asked me something about, you know, how are you going to do this?

And what I said, and I am so in awe and so -- I love Nelson Mandela so much. I said Nelson Mandela was able to survive 27 years in prison, I could survive five years. I wasn't comparing myself to Nelson Mandela. I am not a Nobel Prize winner. I am -- my -- our situations are -- well, it shouldn't have and it didn't. If you watch the tape. I watched it. I mean, I didn't seem like I was comparing myself to Nelson Mandela in any way. And I really don't want anybody to be confused about that.

Her original statements to Barbara Walters did indeed seem like Stewart may have been comparing herself to Mandela. It is advisable to preface what you are about to say with any sort of qualification and then make your statement. If you do the reverse you run the risk of a broadcast audience tuning out your last qualifying statements as they react to the first part.

Larry KING: You made the strong statement that you have faith in the legal system.

Do you like this judge?

Was she fair, in your opinion?

And what do you think of mandatory sentencing?

STEWART: OK, well that's a lot of questions in one question. Judge Cedarbaum is an elegant lady. She happened to go to the same college I went to, do you know that?

KING: No.

STEWART: Oh, yes she went to Barnard College where I went, my daughter went, several people in our family went. And I think she is an intelligent judge. I think she took this entirely seriously. She had great faith in her jurors. She had great faith, again, in the legal system, as I went into this process having.

And that said, I think that – what was the second part of your question?

KING: Mandatory sentencing. She gave you the minimum.

STEWART: She did, and I am grateful for that. I think that the sentencing guidelines are under a siege right now. Many judges in America are questioning the validity of the sentencing guidelines. I'm not an expert in that, but when I see and hear what I've been hearing about them, the question of the validity of them is going to the Supreme Court.

A problem for Stewart has also been an audience perception that she is an elitist and is an "inside trader." Her mentioning that she has a relation to the judge through a very elite university does not help her issue. It certainly may not ingratiate her to the judge personally.

Stewart goes on to question the legal system, even though she does try to qualify her statements, and that position can insult judges, jurors and shows any audience that she is not repentant on any level.

Larry KING: How about the press and you? Especially some of the press. "The New York Post" has been very hard on you. Other tabloid media very difficult on you.

STEWART: Well, if you go to the Midwest , there's none of those stories, you know.

KING: So what do you think it is? You live in New York? You're an easy target?

STEWART: I think that it sells newspapers. That's really -- that's it. And the stories are really something, aren't they?

This statement by Stewart can certainly antagonize journalists both in New York and nationally but additionally an audience might think, "isn't Martha Stewart a media animal herself who has tried to grab headlines her whole career, isn't that a bit hypocritical of her to say such a thing?"

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USA : Is Martha Stewart being made an example of to some degree? I'm not an expert, but from the amount of money involved and the ambiguities of the case, a prison term (even a short one) seems harsh.

I can't help making comparisons. If she deserves to spend half a year in the pen, people like Ken Lay (just an example), whose crimes had a vastly greater financial and human cost, probably deserve the death penalty.

And I don't even like Martha Stewart.

Your comments?

Scott Sobel: Many people feel as you do, that she is being prosecuted because of who she is rather than what she did. However, if we are to ignore people and criminal conduct such as Ms. Stewart's then others will argue that we are treating her with special kid gloves.

There is no easy answer as to the broader question you pose: should white collar offenders be treated more or less severely than "ordinary" criminals?

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Washington , D.C.: Everything I've heard about Stewart is that she's really bossy. How do you think she's going to adapt to being bossed around after a few weeks without a break?

Sandra D. Jordan: The conditions in prison will not allow for her to be "bossy" because such an approach will only get her into trouble with the prison officials. Her best approach to this short prison stint is to be as accommodating as possible so that she will make her time in prison uneventful.

Scott Sobel: From a PR counselor's point of view of would advise her to be very cautious about what she does behind prison doors because certainly her behavior will be reporter to the media; either by inmates, prison employees or others. She may be in prison but there should be no expectation of privacy on any level.

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Washington , D.C.: What can Martha Stewart expect from her time in prison?

Sandra D. Jordan: Stewart will be treated as all of the prisoners are treated, no more harshly or favorably.

This means that she will be expected to adhere to the system of the routine prison day, to comply with all orders and obligations and to not cause trouble.

Stewart will have to work at the rate of pay of 12c per hour. She will work for 7 hours per day either making clothing or working on the grounds.

She will be in a unit with about 60 other prisoners and they have two showers per unit.

The other prisoners are certainly expecting her, and it is unclear how they will react. If Stewart is treated more leniently, then this will cause hostility from other prisoners.

Stewart cannot conduct any outside business while in prison. She can't have any conjugal visits.

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Marlboro, N.J.: By being in prison, is Martha Stewart's chance of appeal hurt?

Sandra D. Jordan: Stewart's prison time does not help or hurt her appeal, which is in progress.

The remedy that she may obtain from the appeal can be, at most, a reversal of her conviction. In such a situation, she will have already served her time. If the appeal results in a new trial, then she will have to go through it again.

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Arlington , Va.: Is Martha Stewart's case the last we are going to see of high-profile white collar crime cases?

Sandra D. Jordan: Absolutely not.

The Stewart case is evidence of the government's renewed efforts toward white collar and business crimes. The government has taken a very aggressive approach and it is expected to continue.

Scott Sobel: My experience tells me that once prosecutors experience this kind of success, especially such a raised visibility in the media, they will continue to look for more cases to dive into. They have tasted red meat and want more.

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Washington , D.C.: Martha Stewart's "crime" was making a false statement to a federal agent. She was not charged with perjury or insider trading. Don't you think prosecutors unfairly used this false statement charge against her? Under that theory, falsely telling a federal National Park Police officer who stops you for speeding that your were going the speed limit is the same "crime" and Martha's. If that's the "crime" we must now waste our prosecutorial resources on, at a minimum, don't you think federal agents should at least warn or "Mirandize" interviewees that false or untrue statements could land them in prison?

Sandra D. Jordan: False statement charges are very common in white collar cases. They are easy to prove and juries understand a simple lie.

Prosecutorial discretion is key to whittle out those cases that are not deserving of criminal attention.

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Gaithersburg , Md.: Obstruction of justice implies to me that an illegal act occurred. Was an illegal act proved?

If so what was the act? If not, then how could Martha Stewart have avoided obstruction of justice without implicating herself in an illegal act? For example we know in Watergate that the illegal act was the break in of the Democratic campaign headquarters in the Watergate. Nixon obstructed justice so that the burglars would not implicate him. What is the chain in Martha Stewart case? Keep it simple please.

Scott Sobel: Obstruction of justice cases can be very involved, but they need not be.

Certainly this case is not on the same level as some of the other serious obstruction investigations, but this is not to say that an illegal act was not proven. The degree of obstruction is not the determining factor.

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Wilmette , Ill.: If Martha Stewart "behaves" in prison, will the additional time of house arrest be waived?

Sandra D. Jordan: Stewart's good behavior in prison is expected. Her house arrest is not connected to the way in which she acts while in prison. Taken together, they are her total punishment for the crimes.

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Rockville , Md.: What IS the status of Stewart's appeal?

Sandra D. Jordan: Stewart's appeal is pending. She did not drop the appeal when she agreed to go to prison early.

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Washington , D.C.: Do you think the Stewart case represents a "victory for the little guy?" Wasn't it "the little guy" at Stewart's company -- those who lost their jobs as a result of the impact the trial had on her company -- that really suffered?

Sandra D. Jordan: Stewart had apologized for those people who have lost jobs because of her downfall.

The little guy is affected whenever "big" guys take advantage of their positions of power. Even if there is no direct impact on "little" guys, the legal system is set up to protect all victims, especially those who cannot protect themselves or who are most vulnerable.

There is always a tension between a prosecution that affects a company and the reality of the impact on shareholders and employees. This must always be weighed against the wrongdoing and the criminal conduct.

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Washington , D.C.: If Martha Stewart were your client, how would you advise her to handle situations where another inmate might provoke a violent incident for publicity purposes?

Sandra D. Jordan: If Stewart is confronted with inmates who are taunting her, she will have to resort to the usual means of avoiding conflict and reporting to the authorities.

If an inmate uses Stewart's fame to prompt a prison incident, Stewart is really under the control of the prison system for protection and resolution.

Her best bet is to remain out of situations which might cause her to be in contact with inmates who would cause trouble.

She should develop a relationship with the guards, but this can also cause favoritism problems.

She is really between a rock and a hard place.

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Washington , D.C.: Given the ease with which prosecutors can attack a person for false statements, isn't best to refer all inquiries from the federal government to an attorney?

Sandra D. Jordan: False statement cases arise in situations where the individual or corporation is submitting documentation or answering questions posed by the government. It is one of the simplest crimes to allege, and the statements need not be under oath.

False statement charges usually are in connection with other criminal charges arising out of an investigation.

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Washington, D.C.: As an attorney who works with women in the federal system, I can add that Martha, like all the other women, should expect to be strip searched after every visit with anyone (even her attorneys); she should expect to only be able to use the phone 300 minutes per month, she should expect her calls will be monitored, and she should expect that she's going to have to get used to total lack of privacy.

Sandra D. Jordan: You are correct. Stewart will have major adjustments to handle as she transitions into prison life. All of the invasions on her privacy are typical of the conditions of an inmate. She will be able to argue if abuse is taking place, but the conditions you describe are typical.

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Gaithersburg , Md.: Is Martha Stewart's case unusual compared to Enron, Adelphia, or any other recent high profile white-collar crime cases, in terms of the media's interest, the judge's decision, or the public interest/perception?

Sandra D. Jordan: We have run out of time. Thank you.
Scott Sobel The questions were interesting and insightful. The Stewart case will probably set precedent for legal and public relations/white collar issues for some time to come.

Thank you.