Martha Stewart asked a judge on Thursday to grant her a new trial, citing charges that a government witness at her first trial lied repeatedly on the stand.
The request, considered a long shot by legal experts, came four weeks before Stewart and former stockbroker Peter Bacanovic are to be sentenced for lying about a well-timed stock sale by the celebrity homemaker in 2001.
The motion argues that the conviction is tainted by newly unveiled perjury charges against Larry Stewart, a Secret Service laboratory director who was called as an expert witness at the trial in February.
Prosecutors say Larry Stewart, no relation to Martha Stewart, lied on the stand about the role he played in ink-analysis tests conducted on a worksheet prepared by Bacanovic. Larry Stewart has not entered a plea.
Papers filed in Manhattan federal court called his testimony “pivotal scientific corroboration to a prosecution based primarily on circumstantial evidence.”
“Simply stated, a verdict that rests upon such a corroded foundation cannot stand,” the papers argued.
The filing also said several other Secret Service officials were in court, monitoring the trial, and were aware of the alleged perjury but did not say anything about it.
“Their silence is scandalous and not the way we expect the government to conduct itself,” Martha Stewart’s lawyers, Robert Morvillo and John T. Tigue, said in a statement.
Lawyers for Bacanovic also filed a request for a new trial Thursday, making arguments similar to those in the Martha Stewart motion, said Bacanovic spokesman Lou Colasuonno.
Prosecutors declined to comment. They are expected to oppose both new-trial motions.
The government has insisted the perjury charges do not undermine the convictions. Bacanovic was acquitted on a charge of falsifying a document — the subject at the heart of Larry Stewart’s testimony.
The government called Larry Stewart to discuss a worksheet that prosecutors said Bacanovic doctored by adding a notation of “(at)60” to make Martha Stewart’s sale of ImClone Systems Inc. stock appear to be part of a prior plan.
The main contention of Larry Stewart’s testimony was that the ink used to make the “(at)60” mark was different from ink used on other parts of the worksheet. Defense lawyers never contested that point.
Still, lawyers for Martha Stewart tried to portray Larry Stewart’s testimony as critical to the entire case because it was aimed at discrediting what prosecutors described as a cover story for the stock sale.
The defense filing also tried to tie Larry Stewart intimately to the government’s case, even casting him as a member of the prosecution team.
When prosecutors cross-examined another ink expert who was put on the stand as a defense witness, Larry Stewart could be seen passing notes forward to prosecutors from a seat in court, the filing said.
Tough argument for defense lawyers
But legal experts have noted that defense lawyers face a very high hurdle in arguing for a new trial based on perjury charges against a prosecution witness.
“This is a tough argument for the defense to make,” said Mark Zauderer, a lawyer at the New York firm Piper Rudnick. “They have to show that unless the government was deliberately involved in the false testimony — which is not the case here — the result would have been different in the trial had the perjury not occurred.”
Larry Stewart was charged with perjury in May and formally indicted by a grand jury Wednesday. He is due in court June 16 to enter a plea.
Martha Stewart and Bacanovic were convicted March 5 of lying about why she sold 3,928 ImClone shares just before they plunged on a negative government report about an ImClone cancer drug.
Stewart made her first bid for a new trial on May 5. She argued that a juror had lied on his questionnaire, failing to mention a prior arrest on assault charges, among other things.
But U.S. District Judge Miriam Goldman Cedarbaum ruled that it was not clear the juror, Chappell Hartridge, had lied at all or that lawyers would have kept him off the case had they known the truth about his background.
Stewart and Bacanovic, each convicted of four federal charges, are scheduled to be sentenced July 8. Each is likely to receive a prison sentence of 10 to 16 months.
The sentencing was originally set for next week, but Cedarbaum delayed it by three weeks to give the defense lawyers time to make their latest new-trial motions.