Jury selection starts in Stewart case

By Erin McClam The Associated Press

4:53 PM EST, January 6, 2004

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NEW YORK - Lawyers picking through jury questionnaires for the Martha Stewart trial face the tricky task of predicting how potential panelists might lean based on answers to queries that could be as simple as what their favorite TV show is.

The process falls somewhere between psychological analysis and mind-reading, legal experts say. And the stakes are huge: The 12 people ultimately selected will decide whether Stewart lands in prison or goes free.

While the questionnaire filled out today by hundreds of potential jurors is being kept secret, legal experts said Stewart's defense team likely used it to look for jurors who are financially sophisticated and hold high-paying jobs.

Those jurors could be more likely to believe Stewart's account that she had a pre-existing order to sell her ImClone Systems stock when it fell to $60 a share in 2001 -- the key to her defense, the experts said.

Such a juror might be "prepared in this age where corporate scandals are on everyone's mind to view these acts objectively and independent of the climate," said Barry Berke, a white-collar defense attorney in New York.

The government claims Stewart was tipped that ImClone founder Sam Waksal and his family were trying to unload ImClone shares. Stewart sold hers on Dec. 27, 2001, a day before a negative government report about an ImClone drug damaged its stock price.

Stewart is accused of lying to the government, and deceiving her own shareholders, about the circumstances of the sale. Stewart avoided $45,673 in losses on the shares by selling before the bad news was made public.

Lawyers for the government and the defense will pore over the questionnaires, targeting jurors they believe are biased -- and making notes on which might be advantageous to their side.

The questionnaire is expected to cover obvious sources of bias for jurors, such as those who might own stock in Martha Stewart Living Omnimedia, the media company Stewart still partly controls.

Prosecutors and the defense agreed on the wording of the questionnaire in December.

One expert, Houston white-collar attorney David Berg, said the questions can be as wide-ranging as asking jurors' their favorite authors, public figures or TV shows.

For example: If a juror lists the Christian broadcast "The 700 Club," that might indicate a strong sense of religion -- and devoutly religious jurors tend to be more punitive, Berg said.

"Somewhere in between those answers lie important psychological distinctions about the panelists," he said.

But weeding out jurors is far from simple. Even demographic information such as age, sex, race and estimated income aren't always clear-cut clues.

While Stewart supporters have claimed she was singled out for prosecution because she is a highly successful woman, a female juror -- even one who swears by Martha Stewart products -- is not guaranteed to be sympathetic.

"Jurors who don't have a lot of money perhaps might be resentful of somebody who does," said Gregory Wallance, a former Brooklyn federal prosecutor. "They might ask, Why did she have to be so greedy? Why was she doing this? Why was she trying to get more? It's playing to emotional themes."

Hundreds of New Yorkers filled rows and rows of chairs and scribbled on the questionnaires Tuesday at a Manhattan courthouse, in a scene that resembled a college exam room.

U.S. District Judge Miriam Goldman Cedarbaum declined to make the questionnaire public, and ordered the press last week not to speak to any potential jurors. The government and Stewart's defense team have also declined to release the form.

By Monday, both sides must give the judge a list of jurors they believe should be excused for obvious bias or other conflicts. By Jan. 14, they must give Cedarbaum the questionnaires and note any questions they want her to explore in open-court interviews.

Those interviews will take place Jan. 20, the first day Stewart and ex-stockbroker Peter Bacanovic are to appear in court. Lawyers could be allowed to ask some of the potential jurors follow-up questions. The judge could also limit the number or content of those questions, or -- as federal judges often do -- ask them all herself.

The two sides will then be allowed to eliminate a predetermined number of jurors. That makes it all the more important for lawyers to pay close attention to the interviews in open court, Berg said.

"You have to conduct what I call 'emergency-room voir dire,'" he said, referring to the legal term for juror interviews. "You have to use all your instinct, training and experience to read every answer, every grimace, all the body language you can."