Lawyers for Martha Stewart filed a motion yesterday for a new trial now that a federal grand jury has indicted a witness on charges of lying during Stewart's trial.
This is the second attempt by Stewart and her former stockbroker to win another trial before their sentencing, which is scheduled for July 8.
However, legal experts said they believe the latest motion will be denied and the path will be cleared for sentencing, which is likely to include at least 10 months in prison.
Stewart and her former Merrill Lynch broker, Peter E. Bacanovic, were convicted in March of making false statements, conspiracy and obstructing a federal investigation into the sale of Stewart's ImClone Systems Inc. stock just before the price plunged. The pair said they had an agreement to sell the stock if it fell below $60 a share.
Prosecutors said Bacanovic added a notation of "@60" on a worksheet after the stock sale to corroborate his and Stewart's claim of an agreement.
The witness, Secret Service laboratory expert Larry E. Stewart, who is not related to Martha Stewart, was charged with lying on the stand about his role in testing the worksheet ink.
Stewart's lawyers Robert G. Morvillo and John J. Tigue said in a statement: "The motion demonstrates that perjured testimony was vital to the prosecution's case and was used to substantiate the government's main point at trial - that Martha Stewart and Peter Bacanovic did not agree to a $60 target price for ImClone days before her sale. No conviction should be premised on the perjured testimony of any government official."
The U.S. attorney's office for the southern district of New York said the convictions were good, even if their witness was not.
The attorney's office charged in its complaint filed in May against the Secret Service official that he had no role in testing the ink. Another Secret Service lab worker found more than one kind of ink on the worksheet.
But, the complaint adds, "the government does not believe that the integrity or validity of any of Martha Stewart's or Peter Bacanovic's convictions is called into question."
The perjury charges against the agent were enough for federal district Judge Miriam Goldman Cedarbaum to delay the pair's sentencing to July 8 from June 17 to give defense attorneys time to file a motion for retrial.
She had denied an earlier motion from the defense seeking a retrial on grounds that a juror, Chappell Hartridge, had withheld information about an arrest before being seated on the Stewart jury.
All of the motions could be grounds for an appeal, although neither seems sufficient to warrant tossing out the conviction and retrying Stewart, several legal experts said.
The evidence is not directly "on point," said Scott Harshbarger, a former Massachusetts attorney general and head of Common Cause.
"It's entirely appropriate for the judge to take time to evaluate for herself and give both sides the opportunity to make their case. Perjury is a serious matter," he said. "But I do think it's a long, uphill shot to get a new trial based on this."