Guest: Josh Berman, Ron Fischetti, Roy Black, Tiffany Erwin Moller, Dominick Dunne, Foster Winans
DAN ABRAMS, HOST: Coming up, Martha Stewart gets the lightest sentence possible under the guidelines.
(BEGIN VIDEOTAPE)
MARTHA STEWART: And I‘ll be back. I will be back.
ABRAMS (voice-over): But is there any way she could still avoid prison time all together? We‘ll look at Martha‘s chances on appeal and talk to her friend, author Dominic Dunne, who was in court today.
The program about justice starts now.
(END VIDEOTAPE)
ABRAMS: Hi everyone. First up on the docket tonight, and the only thing up on the docket tonight, I don‘t care what anyone else says, Martha Stewart has got to be breathing a sigh of relief right now. I was in the courtroom this morning as Judge Miriam Goldman Cedarbaum delivered Stewart‘s sentence, and I‘ve got to tell you, I think that Martha got it as good as she could have hoped.
Stewart will spend five months in prison, five months under house arrest, two years probation. She‘ll have to pay a $30,000 fine. She was able to choose at which home she could serve her sentence, five months of house arrest at her home in Bedford, New York. Stewart will be able to leave the house for work, medical appointments, religious observances. She can‘t be away from home for more than 48 hours a week.
She also must remain at home all day for at least one day a week. The judge will decide later about whether Stewart will have to wear an electronic monitoring bracelet or if she‘ll have to check in by phone. And she‘ll have to pay all the costs associated with home detention. But to make things even better for Stewart, the judge has recommended she spend the five months at a minimum security prison in Danbury, Connecticut, not far from her home in Westport, the prison Stewart had requested, and to top it off, the judge says Martha Stewart doesn‘t have to start serving yet.
Judge Cedarbaum has agreed to wait until Stewart‘s appeals process is over. That could take years. Inside the courtroom, we saw a more humble Martha Stewart asking the judge for leniency.
Quote—Remember all the good I have done, she said. Today is a shameful day. It‘s shameful for me, for my family, and for my company.” Moments later outside the courtroom, she seemed a bit more defiant.
(BEGIN VIDEO CLIP)
STEWART: And I‘ll be back. I will be back. Whatever I have to do in the next few months, I hope the months go by quickly. I‘m used to all kinds of hard work, as you know, and I‘m not afraid. I‘m not afraid whatsoever.
(END VIDEO CLIP)
ABRAMS: You go, girl. Dominick Dunne was in court for the sentencing. We‘re going to talk to him in just a minute, but first I want to get a quick reaction on the sentence from tonight‘s legal panel. Joining me, criminal defense attorneys Roy Black and Ron Fischetti, Tiffany Erwin Moller, a former prosecutor who worked in the same office that prosecuted Martha Stewart, and Josh Berman, a former federal prosecutor who also worked for the Department of Justice.
All right, I‘m not going to get really into it so I‘m going to ask for a quick answer from each of you, and the question is, do you agree that this was a great day for Martha Stewart—Josh Berman.
JOSH BERMAN, FMR. FEDERAL PROSECUTOR: Absolutely. She couldn‘t get it any better, and the judge, by letting her out on appeal or pending appeal out is saying, look, you may not have to do any time. If it comes back to me on a re-sentence for some reason, maybe I‘ll give you no time.
ABRAMS: Ron Fischetti.
RON FISCHETTI, CRIMINAL DEFENSE ATTORNEY: Well I don‘t think it‘s a great day. I think it‘s a good day. There was a motion for downward departure. I know from speaking to Bob Morvillo she hoped that she would get community service. But it‘s a good day because she got the lowest end of the guidelines that she could possibly get, five months in, five months halfway house, in her own home...
ABRAMS: Yes.
FISCHETTI: ... and I think she did well.
ABRAMS: Roy Black.
ROY BLACK, CRIMINAL DEFENSE ATTORNEY: Well I think it was a fair sentence and I wanted to congratulate you, Dan, because you actually predicted...
ABRAMS: I did...
BLACK: ... five months in and the five out.
ABRAMS: Thank you. Yes, I did. Thank you. Thank you. But you think it was a good day for Martha?
BLACK: It was. It was a fair day. I can‘t—it‘s not the best that could happen, but I think it was very fair.
ABRAMS: Tiffany.
TIFFANY ERWIN MOLLER, FMR. FEDERAL PROSECUTOR: Oh, I think it‘s a very, very good day for her in the sense that the judge could have done a lot worse for her than she did. I mean, don‘t forget there was the securities fraud count that was out there. The charges were dismissed. The judge could have used that to you know sentence her to a lot more time, so I think she did very, very well.
ABRAMS: All right. I‘m going to ask you all to stand by for a moment. My pal Dominick Dunne was in court today. He‘s also friends with Martha Stewart. He even wrote a letter to the judge on her behalf. I didn‘t actually know that, that Dominic wrote a letter to the judge on her behalf.
DOMINICK DUNNE, “VANITY FAIR”: I did.
ABRAMS: You did. I had dinner with you last night and we didn‘t even talk about that.
DUNNE: How about that?
ABRAMS: He writes for “Vanity Fair” and he joins me now. All right, Dominic Dunne, first of all, your reactions inside the courtroom to Martha reading that statement, and in comparison to the way Martha Stewart was outside the courtroom.
DUNNE: Well, it was a whole different matter. I was quite touched by her. I mean, you know, she‘s been criticized all the way through, you know, for never breaking down. It seemed to me, she didn‘t cry, but, I mean, she was sort of—her voice was choked. There were sort of tears in her voice as she said it. I thought that it was quite moving.
But then when she got outside, I didn‘t actually—I couldn‘t hear it as it was happening, but I subsequently have seen it, and I hated the pitch that she did about the magazine and the thing—it was a whole different attitude outside. But also in the courtroom—the courtroom was filled. People were standing in the back. I mean there was no gasping, nothing like that. It was a very fair—I mean, I love Judge Cedarbaum. I think she is so fair and has been so good all the way through this and she went to the, you know the bottom of the guideline and...
ABRAMS: Dominick, do you agree with me that she seemed sympathetic?
I mean she...
DUNNE: She did.
ABRAMS: ... seemed to like Martha Stewart.
DUNNE: She did. She did. And then Martha did a very nice thing, I thought. She turned around and she kissed her daughter and didn‘t do that at the verdict, and she kissed another lady. I didn‘t know who she was, who was sitting next to Alexis. But I mean I think the whole—I mean she has to be happy. And if I were she, I wouldn‘t wait around for an appeal and the thing and a new trial and a new—you know, five months is not much time. If I were she or Peter Bacanovic, I‘d go tomorrow morning and be home for Christmas.
ABRAMS: Do you think anyone in the family was—I happen to agree with you. We‘ll talk about that later in the program. Anyone in the family surprised? I mean was anyone in Martha—on Martha Stewart‘s—in her inner circle actually expecting that she was going to get no prison time?
DUNNE: No. I mean I don‘t know why I‘m saying no. I didn‘t ask them all, but I mean, I don‘t think anybody came out of that courtroom saying, oh, isn‘t this terrible. I mean...
ABRAMS: Yes.
DUNNE: ... you know it was a pretty lucky call.
ABRAMS: Martha Stewart really did sound—you know, whatever you think of this case, you know, she gets out there and she‘s, you know, fighting words, she‘s ready to go. It sounds like she wants to go back to work. She sounds ready for prison...
DUNNE: She does.
ABRAMS: Right?
DUNNE: She does.
ABRAMS: How do you think she‘ll handle it?
DUNNE: Oh, I think she‘ll handle it well. I mean I think anything she takes on—and she‘ll take on prison, believe me, and she‘ll probably end up when she leaves in five months or four months, if she gets off early, I mean, she‘ll probably be a very popular figure there. I‘m sure.
ABRAMS: You got a chance to speak very briefly with Peter Bacanovic, her co-defendant?
DUNNE: Yes, I did. I talked to Peter this afternoon just before he was sentenced. I thought he was amazingly calm. I was also extremely surprised that in the “New York Post” today, he was quoted as saying he believed he would get five months prison, five months home and he sure called it right.
ABRAMS: Dominick, I know we have to let you go. If you had some words of wisdom for Martha Stewart—if she said, Dominick, what do I need to do now in terms of my public perception and the way that I should move forward, what would you say to her?
DUNNE: I‘d say go to jail.
(LAUGHTER)
ABRAMS: Dominick Dunne, great to see you Dominick.
DUNNE: OK.
ABRAMS: Thanks for coming on the show.
DUNNE: Thank you.
ABRAMS: Coming up, Martha Stewart, and I said it before, she gets the lightest sentence possible under the guidelines. (UNINTELLIGIBLE) thing Dominick was just asking. Does she really want a new trial and a new sentence by appealing—more with our legal panel.
And a look inside the Danbury Correctional Facility where the judge is recommending that Martha serve time. We‘ll talk to a former inmate.
Plus...
(BEGIN VIDEO CLIP)
STEWART: Perhaps all of you out there can continue to show your support by subscribing to our magazine, by buying our products, by encouraging our advertisers to come back in full force to our magazines. Our magazines are great. They deserve your support...
(END VIDEO CLIP)
ABRAMS: Plugging her magazines, and even the cushions, I guess, that they make. It was not the only thing Martha Stewart talked about on her way out of court. We will play all of Martha‘s statements.
Your e-mails abramsreport@msnbc.com. What do you think? Please include your name and where you‘re writing from.
(COMMERCIAL BREAK)
ABRAMS: Coming up, did Martha Stewart get such a good deal that maybe she should drop her appeal? Stay with us.
(COMMERCIAL BREAK)
ABRAMS: We‘re back. I‘ve been saying Martha Stewart got a light sentence, appropriate but light. Stewart sentenced to just five months in prison, five months home detention. She could have gotten between 10 and 16 months behind bars. Judge Cedarbaum listed several reasons for her decision. She pointed to the fact that Stewart has no prior criminal record. She even cited the 1,500 letters from Stewart supporters. She said that Stewart had helped the community, and that she thought that Stewart had—quote—“suffered enough.”
Remember that Stewart was convicted of conspiracy, obstructing justice, lying to federal investigators twice. Once she told the SEC and the FBI and federal prosecutors that she had pre-arranged—a pre-arranged agreement with co-defendant Peter Bacanovic to sell that ImClone stock when it fell below 60 a share. Second, when she told them that she didn‘t remember being told that members of ImClone Chairman Sam Waksal‘s family were selling their shares of ImClone.
So Ron Fischetti, look, I know that you think that this judge could have gone down in terms of the sentence and that there were arguments to be made that could have taken it out of these guidelines, but this is a judge who was very sympathetic. I mean the fact that this judge considered the 1,500 letters from Martha Stewart fans as a reason to keep it on the low end to me is as good as Martha Stewart is going to get.
FISCHETTI: Oh, there‘s no question about that. All judges consider letters, but there‘s no question that Judge Cedarbaum was sympathetic...
ABRAMS: But in the...
FISCHETTI: ... she was compassionate.
ABRAMS: In the Taubman case, the judge seemed to actually use it against Albert Taubman that...
FISCHETTI: He did.
ABRAMS: ... so many people had written in, saying I‘m not going to treat him any differently than anyone else.
FISCHETTI: You know what‘s interesting about the Taubman sentence, you may recall Judge Daniels refused to grant bail pending appeal.
ABRAMS: Yes.
FISCHETTI: He went right in while Judge Cedarbaum granted her bail pending appeal, saying of course that she believes that there is at least in her judgment a substantial issue on appeal.
ABRAMS: Roy, I‘m surprised. I mean Judge Cedarbaum really—I‘m surprised, I guess, that more of the Martha supporters aren‘t saying, wow. I mean I understand you can‘t say it‘s great when someone like Martha Stewart is going to prison, but in comparison to what she could have gotten, and the fact that is seems this judge accepted almost every argument that the defense made, this was a big day for the defense.
BLACK: Well, there‘s no question it was a good day for her. It was a fair sentence. But has already been mentioned, they moved for downward departure on two grounds which were denied. And not surprisingly, there‘s really not good grounds for downward departure here. But let‘s face it, the crime that she was convicted of is really not within the heartland of obstruction of justice. I mean she was basically convicted about lying about insider trading, which she was never charged with, so it makes it a little bit unusual, and I think the judge took that into consideration as well.
ABRAMS: Josh Berman, let me ask you about that. We were talking earlier today—I was talking with my staff, et cetera, about this issue of what triggers the feds to go after someone. And everyone knows, when you lie to federal authorities, it gets them angry. But you know you have to accept the fact that in most cases, they probably wouldn‘t have gone after someone just for lying. So what is the trigger in a case like this that will lead the authorities to go after someone, Martha Stewart or Margaret Stewart?
BERMAN: There‘s two things going on here. First, federal authorities, both the prosecutors and the agents, take lying very seriously, whether it be a trial in the grand jury, or to something like the SEC or the Federal Election Commission, and when you lie to an agency such as the SEC and to investigators dealing with financial matters, with crimes that could undermine the financial systems, the investigators do care. For someone as public as Martha Stewart to have done this you know alleged insider trading and then to have lied about it, that really cuts to the heart of what these investigators were doing.
ABRAMS: But she didn‘t get charged. I mean you know I hate to—I feel like a broken record here, but she didn‘t get charged with the alleged insider trading.
BERMAN: Well she didn‘t get charged with that in part because that‘s where the prosecutors showed their discretion. It‘s very rare to charge someone in Martha Stewart‘s position, having received a tip and to make a smaller trade like the one she made with insider trading. However, they were investigating the insider trading, they were investigating Waksal, and as they moved up that chain, the lying really cut to...
ABRAMS: Let me ask Tiffany this question. Tiffany, you‘re sitting at your desk...
ERWIN MOLLER: Yes.
ABRAMS: ... months ago when you were a federal prosecutor and...
ERWIN MOLLER: When I had a real job, right.
ABRAMS: Yes and...
ERWIN MOLLER: Yes.
ABRAMS: ... the agents come to you and put on your desk the fact scenario laid out here and it wasn‘t Martha Stewart. You would have to go to your supervisor, wouldn‘t you, to say, gosh, do we really want to move forward with the resources for this prosecution?
ERWIN MOLLER: Oh, I don‘t know about that, Dan. I mean I totally agree with Josh. You have to understand, she walked into the U.S. Attorney‘s Office with very, very, very high priced and fancy New York lawyers who I am sure advised her about the importance of telling the truth. She walked in there and she lied to the U.S. Attorney‘s Office, to the Federal Bureau of Investigation and to the Securities and Exchange Commission about, as Josh said, a matter that affects financial institutions and—or financial matters, and that is a very serious matter. We all take it very seriously.
And I‘ll just remind you, by the way, there‘s a guy named Frank Quattrone, who I know you know he is, he was an investment banker at CSFB, and he was prosecuted based on the same sort of theory. I mean the office was investigating a matter that involved his group that—it turned out the investigation didn‘t lead anywhere, there were no criminal charges filed, but we filed charges or the office filed charges against Quattrone for obstructing justice in connection with an investigation that never led to any charges. So it‘s really not as atypical, I mean it‘s not the norm, but it‘s not as atypical as people are making...
ABRAMS: Go ahead Roy. I see Roy wants to get in. Go ahead Roy.
ERWIN MOLLER: ... making it out to be. Yes.
BLACK: Dan, the big difference here is that almost all these cases are against people who manipulate their own stock. Remember Martha Stewart was only an investor here. This was not in the stock of her own company. That‘s what takes us out of the heartland of the kinds of cases that are usually prosecuted. If she had done it with her own stock, I would agree, but she did not.
ABRAMS: Robert—Ron, you‘re friends with Robert Morvillo, the lead attorney for Martha Stewart in this case. First of all, let me say you know he was—some people were second-guessing him, criticizing him for the way he sort of handled the trial.
FISCHETTI: Happens to all of us when we lose. You know that, Dan.
ABRAMS: I think that‘s totally unfair. The bottom line is from watching the opening statement, watching the trial, bottom line is he couldn‘t have put her on the stand, shouldn‘t have put her on the stand, he did the right thing. I think people should lay off him on that issue, but we are hearing now that there has been a little bit of a change in the relationship between—is Martha Stewart mad at him about how everything went?
FISCHETTI: No, no, I don‘t think so at all. I think you heard her in her statement when she thanked him. I know for a fact that he has interviewed a number of appellate lawyers for her, which is the typical and smart thing to do for a trial lawyer when you lose a case, to bring in somebody else. He brought in Dellinger, an excellent appellate lawyer in this case.
ABRAMS: Yes.
FISCHETTI: No, I don‘t think they‘ve split. I don‘t think there‘s any animosity between them. I think she knows he worked as hard as he could...
ABRAMS: Yes. All right.
FISCHETTI: ... to try and get her acquitted, so I don‘t think that‘s true.
ABRAMS: Let me play another piece of sound from Martha Stewart from outside the courtroom.
(BEGIN VIDEO CLIP)
STEWART: I‘m just very, very sorry that it‘s come to this. That a small personal matter has been able to be blown out of all proportion and with such venom and such gore. I mean it‘s just terrible.
(END VIDEO CLIP)
ABRAMS: Roy, if you‘re her lawyer, do you just say stop it. Stop with the “small personal matter” business?
BLACK: Dan, I‘m just wondering who drafted this statement for her.
(LAUGHTER)
BLACK: In fact, it‘s not even a statement. You know I‘ve been a criminal lawyer for 33 years, and I thought I saw everything. I‘ve never seen a defendant at a sentencing make a pitch for products that he‘s selling. I mean this is...
ABRAMS: But you know...
BLACK: ... this is so extraordinary.
ABRAMS: But I‘ve got to tell you, you know—and Josh, I‘ll come to you in a minute—but, Ron, I don‘t—I think people are being too hard - - I mean look, I‘ve been criticizing Martha during the trial, but I think that, look, she‘s trying to make an announcement that says, I‘m back, I‘m going to serve my time...
UNIDENTIFIED MALE: Sure.
ABRAMS: ... I‘m going to do my time, but I‘m also going to be back at my company, and you know the sentence is done with. This isn‘t going to affect the appeal.
FISCHETTI: Sure and she‘s trying to save the company. I mean there‘s no question about that. I understand she‘s going on Barbara Walters tonight. I think you‘re going to see a P.R. campaign that the company...
ABRAMS: Yes.
FISCHETTI: ... is going to survive, and she‘s doing that. It doesn‘t hurt the appeal at all.
ABRAMS: It‘s too bad she wasn‘t going...
(CROSSTALK)
ABRAMS: ... to come on the program about justice and answer some tough questions.
FISCHETTI: That would be interesting.
ABRAMS: Yes that would be interesting, wouldn‘t it? And by the way, Martha, Mr. Morvillo, you‘re invited to come together and—to be on the program. Martha, we‘ll give you the hour.
All right. Josh Berman, go ahead. You want to chime in very quickly about the statement.
BERMAN: Where‘s the venom and the gore? Is she talking about the media or is she talking about the prosecutors? If she‘s talking about the prosecutors, this is an office, which takes these matters very serious and are—is very deliberate about it. They took their time. They made their case. They were very straightforward about it. And Karen Seymour and Michael Schachter they‘re pretty straight characters here. They‘re not—you know they‘re not looking to make a name for they themselves.
ERWIN MOLLER: Yes.
BERMAN: If it‘s the media, well the media has been very fair in this case. The same number of people have been on your show, Dan, saying she shouldn‘t be prosecuted or she should...
ABRAMS: Yes.
BERMAN: ... get a lighter sentence as on the other hand saying she should be prosecuted and she got the sentence she deserved.
ABRAMS: Yes. Yes. All right.
FISCHETTI: I don‘t know about that. Charging her with manipulation of her own stock?
(CROSSTALK)
FISCHETTI: Charging her with securities fraud?
ABRAMS: All right. Hang on...
BLACK: Not only that, but their leading expert...
(CROSSTALK)
BLACK: ... witness committed perjury.
UNIDENTIFIED MALE: Please.
BERMAN: They could have charged her with that and they didn‘t.
ABRAMS: We will get to all of that...
UNIDENTIFIED MALE: Please.
ABRAMS: ... in a minute. All right everyone got a little comment in there. Roy, Ron, Tiffany and Josh, stick around because up next...
(BEGIN VIDEO CLIP)
STEWART: ... is a shameful day. It‘s shameful for me and for my family and for my beloved company and for all of its employees and partners.
(END VIDEO CLIP)
ABRAMS: Yes, Martha spoke after, after the sentence. We‘re going to play the statement in its entirety.
And later, my observations inside the courtroom—why I don‘t think Martha Stewart wants us to pity her. It‘s my “Closing Argument”.
(COMMERCIAL BREAK)
ABRAMS: We‘re back with our special hour. Martha Stewart sentenced today. Five months in prison, five months house arrest, two years probation. She‘ll also have to pay a $30,000 fine. I was inside the courtroom. She was stoic and deferential. Outside, a different story—a defiant Martha Stewart met the press.
(BEGIN VIDEO CLIP)
STEWART: Today is a 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 over the—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.
More than 200 people have lost their jobs at my company and—as a result of this situation. I want them to know how very, very sorry I am for them and their families. I would like to thank everybody who stood by me, who wished me well, waved to me on the street like these lovely people over here...
(CHEERING)
STEWART: ... smiled at me, called me, wrote to me. We received thousands of support letters and more than 170,000 e-mails to Marthatalks.com, and I appreciate each and every one of those pieces of correspondence. I really feel good about it. Perhaps all of you out there can continue to show your support by subscribing to our magazine, by buying our products, by encouraging our advertisers to come back in full-force to our magazines. Our magazines are great. They deserve your support, and whatever happened to me personally shouldn‘t have any effect whatsoever on the great company, Martha Stewart Living Omnimedia.
And I don‘ t want to use this as a sales pitch for my company, but we love that company. We‘ve worked so hard on that company, and we really think it merits great attention from the American public. And I‘ll be back. I will be back. Whatever I have to do in the next few months, I hope the months go by quickly. I‘m used to all kinds of hard work, as you know, and I‘m not afraid. I‘m not afraid whatsoever. I‘m just very, very sorry that it‘s come to this, that a small personal matter has been able to be blown out of all proportion, and with such venom and such gore. I mean it‘ s just terrible. We are going to appeal, so I‘m not going to talk about the case...
(END VIDEO CLIP)
ABRAMS: She wouldn‘t, we will. What are Martha‘s chances on appeal, and should she just drop it and just put this light sentence behind her and serve the time? Is it possible, we ask separately, that she could never spend a day in prison? Our legal panel is back to discuss that. And inside Danbury Correctional facility where Martha Stewart would likely serve her time, we‘ll talk with a former inmate.
Your e-mails abramsreport@msnbc.com...
(COMMERCIAL BREAK)
END
ABRAMS: Coming up, inside the Danbury Correctional Facility where Martha Stewart will likely serve her sentence. We‘ll talk with a former inmate—first the headlines.
(NEWS BREAK)
ABRAMS: We‘re back. Now that Martha Stewart‘s been sentenced, what sort of life does she face if she loses her appeal and does serve five months in prison? If she does her time as expected at the federal minimum-security prison in Danbury, Connecticut, a site she requested and the judge is recommending, she‘ll find the inmates apparently already expect her.
One former inmate tells “New York News Day”, it was the talk of the prison. Maybe we‘ll get improvements. Maybe she‘ll clean up the place, which could help on the chow line at Danbury. Inmates with the cleanest cells get to eat first. As for the accommodations, there are two women to a cell with bunk beds. Women over 50 get to sleep on the bottom. Martha is over 50.
Wardrobe, khaki pants and a shirt with black steel-tipped shoes. Her accessories, earrings and a watch worth less than $100. Her schedule, up at 6:00, in bed by 10:00, get to work a seven and a half hour day for 12 cents an hour. Stewart is also facing five months of home detention at her Bedford, New York estate, where she would have to remain at home except for work, medical appointments, religious observances, be allowed no more than 48 hours outside her home per week with at least one day inside.
She may also have to wear an electronic monitoring bracelet on an ankle. Foster Winans was a columnist with “The Wall Street Journal” who was convicted of insider trading for providing information in his column to a stockbroker. He served his time at Danbury Correctional Facility back when it housed just men. Thank you very much for coming on the program. We appreciate it.
FOSTER WINANS, FMR. INMATE, DANBURY FEDERAL PRISON: Hello, Dan.
ABRAMS: Give us a sense of what Danbury is like. I mean has it changed significantly from the time you were there to now as far as you know?
WINANS: Well, very quickly, before I answer that question, I have to say that Martha‘s performance outside the courtroom has to go down in history as one of the most manipulative and disingenuous performances I‘ve ever seen. She makes Michael Jackson look like a model of probity, you know complete disrespect for the justice system.
ABRAMS: Well, we‘ll debate that...
WINANS: Yes. When she gets to prison, she‘ll find a very clean facility, kind of looks like an elementary school. If you took out the inmates and the bunk beds and you put kids and desks in there, you probably wouldn‘t be able to tell the difference. It‘s minimum security. Most of the people there have short sentences. Those segments that you show with bars, there are no bars. There are no walls. There‘s no razor wire. There are two guards guarding about 200 people. They don‘t have guns. The inmates basically run the institution and it‘s actually quite a friendly place.
ABRAMS: Let me ask you a follow up. You were just sort of going after Martha.
WINANS: Yes.
ABRAMS: I mean as someone who has served time for—you know I‘m not going to say it‘s the same sort of—these are different kinds of issues but, you know, white collar...
WINANS: Right.
ABRAMS: ... crimes. You were a prominent person, “Wall Street Journal,” et cetera. You don‘t have any sympathy for her?
WINANS: Absolutely none. Martha Stewart created her perfect storm. She had so many opportunities to cut her losses and to stand out there and talk about how she cares about other people more than herself, if she really did care about other people more than herself, she would have stopped this, this circus that she complains about, right at the beginning.
ABRAMS: What did you do when you were convicted? I mean did you go out...
WINANS: I did it. I did it. I‘m sorry, and I stand up and take my medicine...
ABRAMS: And did you say...
WINANS: ... that‘s exactly what I did.
ABRAMS: ... that I ended up, in effect, taking money from other people because of the advantages...
WINANS: Yes.
ABRAMS: ... that I had in the...
WINANS: Yes.
ABRAMS: ... insider trading? You...
WINANS: Yes.
ABRAMS: ... came clean with all that?
WINANS: Absolutely. Absolutely. The very first article that appeared about my case contained my full and complete admission and apology.
ABRAMS: All right.
WINANS: I mean I think that that‘s something...
(CROSSTALK)
WINANS: ... something we expect from...
ABRAMS: Look, I think—I‘d like to hear Martha Stewart say...
(CROSSTALK)
ABRAMS: ... look, I lied because...
(CROSSTALK)
ABRAMS: ... the evidence was overwhelming. Let‘s talk a little bit more about the prison.
WINANS: Sure.
ABRAMS: Any sense—how long were you there, by the way?
WINANS: I was eight months in Danbury and then they moved me to another facility when they changed Danbury from a men‘s prison to a women‘s prison.
ABRAMS: You think her celebrity will help her?
WINANS: Actually I think it will work against her. I think it will have a tendency to isolate her. She should be very, very careful about anything she says to anybody there, because it will probably end up in the newspaper. She should be very, very careful about what she says on the phone. As you probably know, all phones are listened to and hers will probably be listened to very, very closely, any conversations she has.
I think there will be a comeuppance for Martha when she gets to prison. Her celebrity will not give her any benefit. She will not have any privileges. And there will be some people there who probably will ask her for money, can you help my husband out, we can‘t pay the rent this month. I think it‘s going to be a lot more difficult for her than she realizes.
ABRAMS: Let me ask you—final—what are you up to now? I mean you know again, I‘m sort of fascinated by your story in and of itself, writing for “The Wall Street Journal”, et cetera, a columnist. What are you doing now?
WINANS: Well as soon as I got out of jail, I started ghosting books and I‘ve written 15 books since the late ‘80‘s. I also run a nonprofit writers‘ group in (UNINTELLIGIBLE) County in Doylestown, Pennsylvania where I live. I work with other writers and help them get their books published. That‘s basically what I‘ve been doing.
ABRAMS: There‘s hope for Martha.
WINANS: Beg your pardon?
ABRAMS: There‘s hope for Martha after she‘s released...
(CROSSTALK)
WINANS: ... my recipe for Martha includes going on “Saturday Night Live” and making a total fool of herself and let us see that she‘s a real person.
ABRAMS: Foster Winans, thanks very much for coming on the program.
WINANS: You‘re welcome.
ABRAMS: Appreciate it.
WINANS: Yes. Sure.
ABRAMS: Up next, the judge allowed Martha Stewart to remain free while her appeal is pending. What are her chances and does she really want a new trial? Our legal team weighs in.
(COMMERCIAL BREAK)
ABRAMS: According to Martha Stewart‘s lawyers, today‘s sentence is just the beginning. Attorney Walter Dellinger insists there will be another round of proceedings in a higher court.
(BEGIN VIDEO CLIP)
WALTER DELLINGER, STEWART APPEALS ATTORNEY: We believe that there are very significant issues to be brought before the court of appeals.
(END VIDEO CLIP)
ABRAMS: What are their arguments? Well, first of all, alleged perjury by a Secret Service ink examiner, who testified for the prosecution, and a juror who failed to disclose that, among other things, he‘d been arrested, whether federal agents had to tell Stewart that these particular false statements in this context could be criminal, that one of the charges was dismissed by the judge at the end of the trial.
The defense says that during the trial, though, jurors still heard testimony about whether she lied to prop up her stock price. The defense says that issue and testimony infected the whole trial. A big question, whether the trial was tainted by prosecution suggestions that Stewart had been involved in insider trading even though she was never charged with that.
Question one—what are the chances on appeal? I don‘t think very good. And question two—should she appeal? Considering she got a light sentence, should she just accept the punishment and put this behind her?
Roy Black, what do you think of that? I mean she got such a good deal, I think, today is it going to get any better?
BLACK: Dan, I have to tell you, I disagree with you 100 percent. The problem is she‘s a convicted felon. There‘s a stain on her reputation. Getting out of prison and coming back is very difficult. Look at Foster Winans, who you just talked to. You don‘t see his name in any columns anymore. The public holds that against you. This is not just like going to rehab. You are a convicted felon and I think it‘s important for her to appeal.
ABRAMS: Tiffany, could she get a stiffer sentence? Let‘s say that she wins the appeal, she gets a new trial, and she‘s convicted again. Could she get a stiffer sentence the second time around?
ERWIN MOLLER: Well, I mean I guess theoretically, she could. I think that‘s probably remote. You know, I agree with Roy Black in the sense that it‘s hard for her to be a convicted felon on the one hand, but with respect to whether or not she shouldn‘t just go ahead and serve her jail time, I mean that‘s a business decision for her to make. But keep in mind, you know, she turned down an offer at the beginning of this whole thing to plead—to a count that would be guidelines range of zero to six months, and the press reported she turned it down because the government couldn‘t guarantee her no jail time, which the government can never do. It‘s up to the judge. So I actually think she doesn‘t want to go to prison, and she is more afraid than she‘s letting on. So I am not surprised at all that she‘s taking this tact.
ABRAMS: Josh Berman, do you think there‘s any realistic possibility that she could get a stiffer sentence if she wins the appeal, gets a new trial, gets sentenced again?
BERMAN: I think the one possibility would be that the government could file those insider trading-type charges that we‘ve been speaking about. And if they file those securities-related charges, then she could be facing a stiffer sentence. On the other hand...
ABRAMS: That‘s not going to happen, though. Come on.
BERMAN: No, probably not...
(CROSSTALK)
BERMAN: ... I don‘t think there is a chance she‘s going to get a stiffer sentence. She could get a much lighter sentence if this whole Washington v. Blakely Supreme Court decision were to come into play. The sentencing guidelines in the Second Circuit get tossed out.
ABRAMS: Yes, I just got to explain—that was basically a U.S. Supreme Court decision that basically says there‘s a lot of problems with the federal sentencing guidelines, is the easiest way to characterize it. But...
BERMAN: Yes, and if we go back to pre-guideline sentencing, Judge Cedarbaum could have the whole world of zero to life in front of her...
ABRAMS: Yes.
BERMAN: ... and it looks like she‘d probably give her zero.
ABRAMS: All right. And I‘m assuming, Ron, you agree with everyone so far that it‘s not going to get any worse for her?
FISCHETTI: No, it can‘t get any worse for her. But you know talking about whether or not she should appeal, let‘s talk about what happened. I mean getting this offer of the zero to six, I think she turned that down basically not because of being afraid of jail, but a felony conviction bars her from doing anything with this company. She can‘t be a director. She can‘t be an officer. It really limits her control of her company. That is something that is extremely, extremely important to her, and if she doesn‘t appeal this and win, she can no longer do anything like that.
ABRAMS: All right, Ron, let‘s start talking about some of these appellate issues. I don‘t think she‘s going to win. I think she‘s going to lose on all the appeals, but which of these do the think is the strongest argument Ron?
FISCHETTI: Well let‘s talk about the fact that 97 percent of the appeals that are argued in the Second Circuit are affirmed.
ABRAMS: Meaning that 97 percent of the time, the person who‘s...
FISCHETTI: That‘s right.
ABRAMS: ... trying to win the appeal loses?
FISCHETTI: They lose.
ABRAMS: Yes.
FISCHETTI: They lose.
ABRAMS: Go ahead.
FISCHETTI: But I don‘t think any one of these issues is enough to get over the hump and get a reversal. But the cumulative effect of all five of them, especially the two perjuries, when she was charged with perjury, may be something that catches the conscience of the king in the second circuit. However, I think she has a long, tough road to get this reversed.
(CROSSTALK)
FISCHETTI: And she‘s going to have to wait a long time.
ABRAMS: Yes.
FISCHETTI: That‘s the problem. You have to live with this day-by-day. She‘s not going to get any resolution until the middle of next year.
ABRAMS: Second Circuit, of course, is the court of appeals here...
FISCHETTI: That‘s right.
ABRAMS: ... in the New York area. Roy Black, what do you think is the strongest argument they have on appeal?
BLACK: Well I‘m a little more optimistic. I think she‘s got two points that go somewhere. Number one, the Lawrence Stewart perjury. Remember the judge denied this on the motions without an evidentiary hearing. She took no facts. She just accepted affidavits from the government. I think this might be remanded for an evidentiary hearing on that.
ABRAMS: Let me read what the judge said on this. This is about the ink expert who is now being charged with perjury, for lying during the Martha Stewart trial and here‘s what the judge said on that particular issue.
There is no reasonable likelihood that this perjury could have affected the jury‘s verdict. Overwhelming independent evidence supports the verdict.
BLACK: Sure, but most trial judges say that when they want to deny a motion for a new trial because they don‘t want to go through a trial. But she did not hold an evidentiary hearing. The second point, forget Blakely, but the case of Crawford v. Washington dealing with the right of confrontation, they introduce the Bacanovic statements in her trial, that may violate Crawford. That may be a good point as well.
ABRAMS: Josh Berman, if you‘re the prosecutor here, are you pretty safe, feeling not too concerned about these appeals?
BERMAN: Yes, I don‘t think that there‘s going to be a reversal here. At the bottom line, zero plus zero plus zero equals zero, and that‘s the cumulative effect, isn‘t going to get them anywhere. The perjury, the judge has said the overwhelming evidence points to guilt, was guilt, and she‘s not going to benefit from the Stewart perjury situation. And one of the points you raised, Dan, was that, well, there was evidence that was brought in to trial that she ultimately wasn‘t charged with. That happens all the time in federal trials. In the Second Circuit that court of appeals has repeatedly said that really isn‘t grounds for reversal.
ABRAMS: Tiffany, do you agree?
ERWIN MOLLER: Yes, absolutely. Absolutely. I actually think that her strongest argument, I agree with Roy, are the perjury argument, but don‘t forget, the jury clearly rejected that Secret Service agent‘s testimony, and the reason we know that is because Peter Bacanovic was acquitted on the count that related to that agent‘s testimony. So we know that the jury didn‘t credit the testimony anyway. So at the end of the day, even though I think it‘s one of their better arguments, I don‘t think it‘s going to get them anywhere.
ABRAMS: Did Peter Bacanovic get—let me ask it this way. If Martha Stewart weren‘t Martha Stewart, Josh, would Peter—well, let me just ask first this way. Peter Bacanovic—is the only reason he‘s been charged because Martha Stewart was the one he tipped off?
BERMAN: Well, once the decision was made to go forward with the whole Waksal investigation and the Stewart and Bacanovic case, he was coming along for the ride. I mean there was no way to carve him out and go after her. I mean one of the thoughts was perhaps he would flip, he would cooperate with the government and then you‘d have yet another witness against Martha.
ABRAMS: You know...
BERMAN: That didn‘t happen.
ABRAMS: ... Tiffany, what I was struck by today in court was the fact that the prosecutors didn‘t even seem to be asking for the maximum. They seemed to be recognizing that, you know, we‘re just—we‘re happy with the low end here. We‘re not going to oppose sending her to Danbury. We‘re not going to oppose having her wait to go to prison before the appeal is over. It made you feel like they don‘t view this as serious as some other cases that you could compare it to.
ERWIN MOLLER: Yes, listen, Dan, you‘re absolutely right. I‘m glad you made that point, because this office has been vilified, both by—well, particularly by Martha Stewart and her post sentencing statement, what did she say, the prosecution was full of venom and gore, whatever that means. I mean she clearly doesn‘t appreciate the fact that, you know, the government didn‘t seek all of these enhancements that the government could have sought, and they sort of—were sort of reconciled, as you say, to the sort of 10 to 16 range, and I think that they are reasonable and they do recognize...
(CROSSTALK)
ERWIN MOLLER: ... that this is not the crime of the century...
ABRAMS: Roy, should she...
ERWIN MOLLER: ... but it‘s a serious matter.
ABRAMS: ... should she have been saying thank you to these prosecutors?
BLACK: I doubt that will happen.
(CROSSTALK)
ERWIN MOLLER: Well, I didn‘t go that far. I didn‘t go that far.
(CROSSTALK)
UNIDENTIFIED MALE: Never had someone say thank you to me.
BLACK: Dan, one thing I want to mention...
(LAUGHTER)
BLACK: ... I was surprised about the co-defendant‘s sentence, because I thought he should be sentenced longer than Martha rather than him being dragged along.
ABRAMS: Why?
BLACK: Remember, he was the broker who first of all released the confidential information about his client, and secondly, he was convicted of count six, which was perjury, which is lying under oath to the SEC. Martha never was placed under oath, so I think that his crimes were more egregious than hers.
ABRAMS: Roy—Ron, do you agree with that?
FISCHETTI: No. Well, I think the crimes were more egregious, Roy is absolutely right, but there was no way Judge Cedarbaum was going to sentence the little guy to more time than Martha Stewart with the high profile lawyers and the type of defense they put up. So there was no question in my mind, once Martha got five and five, that Bacanovic would get any more and I think he knew it too.
ABRAMS: All right. Good panel. Great discussion. Big day in the Martha Stewart case. Roy Black, Tiffany Moller, Josh Berman—Ron Fischetti, get Martha Stewart to come on this program, all right?
FISCHETTI: And Morvillo.
ABRAMS: Talk to...
(CROSSTALK)
ABRAMS: Robert Morvillo, I‘m hoping to see here Monday night.
FISCHETTI: You got him.
ABRAMS: And Tuesday, I want to see Martha Stewart. All right?
FISCHETTI: OK.
ABRAMS: All right.
BLACK: Michael Jackson is next.
(LAUGHTER)
ABRAMS: Yes and Rush Limbaugh, Roy, while we‘re at it.
UNIDENTIFIED MALE: Yes, right.
ABRAMS: Let‘s have Rush Limbaugh on the program, all right?
BLACK: I‘ll pass it on.
ABRAMS: All right. Thank you. Goodnight.
Coming up, my observations inside court today. Will Martha ever just say I am sorry? I lied. It‘s my “Closing Argument”. Stay with us.
(COMMERCIAL BREAK)
ABRAMS: Coming up, my observations from inside court today at the Martha Stewart sentencing and why I don‘t think Martha Stewart wants pity. It‘s my “Closing Argument”. Stay with us.
ABRAMS: My “Closing Argument”—Martha Stewart apparently does not want any pity. Yesterday in my “Closing Argument” I said it was OK to feel sorry for Martha, that while she was clearly guilty of the crimes charged, a lighter sentence of 10 months, five in home detention and five in prison would be more than sufficient. Judge Cedarbaum must have been listening. That‘s exactly the sentence she imposed today. But outside court, Martha kept up the fight, making it clear she does not want anyone to feel sorry for her, encouraging people to buy her products, subscribe to her magazines.
And in Schwarzeneggerian-like fashion, saying “I‘ll be back.” Inside, she was deferential, at times emotional. Outside she was confident, unafraid, looking for mercy from the judge, looking for respect from everyone else. She‘s right to move forward with her life, to shoo pity, but she is wrong to repeatedly say that this was just a small personal matter. It was a criminal matter. She wants to continue the appeals, let her do so, but at some point, it would be nice to hear her simply say, I‘m sorry, I lied. I won‘t hold my breath.
No time for e-mails tonight, but we are going to read a ton of them on Monday about the Martha Stewart case. E-mails abramsreport@msnbc.com. Please include your name and where you‘re writing from.
Up next, “HARDBALL” with Chris Matthews. Filling in tonight, Andrea Mitchell. She‘s going to be talking Martha.
Thanks for watching. Have a great weekend.
END
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