The Martha Stewart Effect

November 8, 2005
R. D. Kushner

There seems to be a trend in white collar crime that the court of public opinion matters more than the rule of law. The claim of innocence, by the accused, is a hallmark of a criminal justice system where one is innocent until proven guilty. In an America infatuated with 24-hour television news, public proclamations of innocence seem to be the first line of defense for those engaged in all manner of criminal mischief.

Of course public sanctions or admonitions are not supposed to have any effect on verdicts, because juries are supposed to remain impartial to the facts. So why would a public figure make such a point to claim innocence in front of a television camera?

Public figures have followers, admirers, and supporters. Regardless of the outcome of their trials, they realize that a guilty or innocent verdict is not nearly as important as how they are perceived by their constituents. People can be lead to believe in all manner of rational and irrational ideas. The emotional response to a judicial issue often has absolutely nothing to do with reality or fact; but instead is based upon entrenched beliefs and loyalties. The public never has access to all of the ingredients which juries carefully weigh, but this absence of facts doesn’t keep the public from rendering a judgment of innocence of guilt. White collar criminals know that pandering to public opinion is the best way to insure that a jury’s decision has no bearing on the judgments of the American public.

America has been polarized over the last years amidst the leadership of a president who claimed to be, “A uniter, not a divider.” A polarized America consists of believers and nonbelievers; and the hallmark of both groups is that they resist being convinced of each others opinions no matter how compelling the evidence. This makes decisions of guilt or innocence in a court of law seem disconnected from their independent realities.

For those in support of the rule of law, Martha Stewart was convicted of conspiracy, making false statements and obstruction of justice surrounding her well timed ImClone stock sale. She averted more than $51,000 in losses by selling her stock when she did, and although not charged with insider trading, she and her broker were convicted of lying about the transaction and altering records to support their cover-up story. For Martha Stewart’s supporters, her guilty verdict is either an attack on women in corporate America, the result of an overzealous prosecutor, or simply a mistake Martha made in her portfolio management. In the minds of a polarized America, both of these opinions are reconcilable with the facts of the case; but only one of these opinions is consistent with the jury’s decision. Although both opinions exist simultaneously, one is only an opinion and the other is a fact as determined by a jury.

Martha Stewart’s enormous fame and popularity in spite of her conviction speaks to her success in avoiding her criminalization in the American mind, even as she accepted [albeit begrudgingly] the guilty verdict handed to her by a jury. At the time of the conviction, there was much speculation about the ability of her media empire to survive because the company was so closely tied to her name and face.

This possibility of economic ruin was well known at the time of her indictment, and so Martha Stewart’s PR team and her supporters wasted no time casting doubt on the charges in the case. Although this had no impact whatsoever on the jury’s outcome, the conveniently packaged sound-bytes and monikers in the evening news over period of her indictment had an enormous impact on the sustainability of her media empire after her conviction. The emotional response by her supporters was predictable, and her continued popularity throughout her home incarceration, and now after her release, is proof that there were two juries in her case; and in the court of public opinion Martha Stewart was found not guilty.

For those in support of the rule of law, Lewis Libby has been indicted for one count of obstruction of justice, two counts of perjury and two counts of making false statements. For Lewis Libby’s supporters, his indictment is either an attack on Republicans, the result of an overzealous Democratic prosecutor, or simply a result of his forgetfulness about events that happened two years ago. In the minds of a polarized America, both of these opinions are reconcilable with the currently know facts of the case.

In the coming months, the media will show both sides of these issues. The problem with this is that without all the facts, the American public has only their emotions to guide them. And no matter what the jury’s final decision is on Mr. Libby’s indictment, there are some Americans who will choose to believe the wrong decision was made. Depending on how Mr. Libby and his lawyers handle his case, Mr. Libby will walk away either exonerated, convicted, or innocent of his guilt. The last possibility is the easiest to prove. All he has to do is accept his fate and condemn his accusers; the staunch supporters of the Bush administration will see any conviction as a “liberal attack” against Republicans.

In the United States of Public Opinion, convictions and guilt are often separated by emotion and faith. And if Mr. Libby has learned anything from Martha Stewart, other than how to crochet, it should be that if he can disarm the American public a jury’s finding won’t matter at all.