updated 3/1/2004 6:16:19 PM ET 2004-03-01T23:16:19

It happens more than you think--  prosecutors tend to charge defendants with the most serious charge they can conjure up not necessarily because they think they can convict, but rather it often gives them some wiggle room when plea discussions begin. So what happens if there's no plea?  Well hopefully, the  judge steps in and does what the Martha Stewart judge did Friday and throws out the charge. 

Judge Miriam Goldman Cedarbaum ruled that prosecutors had not presented evidence of securities fraud, the most serious charge. The charge was that Stewart lied to investigators and then just repeated her lie publicly.

The bottom line—the judge is saying there is enough evidence for the jury to decide whether Stewart lied to investigators about the circumstances surrounding her sale of ImClone stock and about whether she and her broker concocted that lie to deceive investigators. 

What the jury will not consider in the next step is whether she took that lie public in an effort to boost the price of her sagging stock.  They‘re still going to decide whether she lied, just not whether she did it specifically to help her stock. 

In a 23-page opinion Judge Cedarbaum wrote, “I have concluded that no reasonable juror can find beyond a reasonable doubt that the defendant lied for the purpose of influencing the market for the securities of her company.  A rational juror would have to speculate.”

Stewart still faces four charges: a conspiracy charge, which could mean up to five years in prison; two counts of making false statements, which each carry up to five years imprisonment; and obstruction again with up to five years behind bars.

I suspect that she will be convicted of something.  But when prosecutors pursue a case that many others might not have prosecuted, they should stick to the charge they can prove. 

Closing Argument is a regular segment on 'The Abrams Report.' 'The Abrams Report' airs weeknights, 6 p.m. ET on MSNBC.

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