Putting Martha on the stand: A good thing?

Douglas Faneuil, an assistant to Martha Stewart's stockbroker, listens to his attorney, Marc Powers, outside federal court in New York last October after Faneuil pleaded guilty to a misdemeanor charge that he was paid to keep secret information allegedly given to Stewart about ImClone Systems Inc.
Douglas Faneuil, an assistant to Martha Stewart's stockbroker, listens to his attorney, Marc Powers, outside federal court in New York last October after Faneuil pleaded guilty to a misdemeanor charge that he was paid to keep secret information allegedly given to Stewart about ImClone Systems Inc. (AP file photo)
Sean "Puffy" Combs did it. So did Mick Jagger, Errol Flynn and Roscoe "Fatty" Arbuckle.

These celebrities faced high-profile trials, took the witness stand to testify in their own defense -- and persuaded jurors to acquit them.

Now the question is: Will Martha Stewart do it, too?

The high-profile trial of Stewart, 62, began last week in a New York federal court. Prosecutors are trying to convince an eight-woman, four-man panel that Stewart obstructed justice, made false statements and committed securities fraud in trying to hide the reason she sold 3,928 shares of ImClone Systems Inc. a day before a negative news announcement about the company's key cancer drug sent the stock falling.

Stewart contends she had a pre-existing arrangement with her stockbroker to sell the shares. The trial was delayed until Monday after her lawyers raised questions surrounding the expected testimony of its star witness, 26-year-old Douglas Faneuil, the former brokerage assistant at Merrill Lynch & Co. who sold Stewart's ImClone shares on orders from Stewart.

Her lawyers say they'll assess the government's case before deciding whether to put her on the stand.

Most defense lawyers resist putting lesser-known clients on the witness stand, fearing jurors won't like them or that they'll wilt under brutal cross-examinations. But the rules that apply to the average defendant don't always apply to such luminaries as Stewart.

"Juries expect celebrities to testify," said Benjamin Brafman, the New York attorney who successfully defended Combs in his 2001 gun-possession and bribery case and who has been retained to represent Michael Jackson in his pending trial on child-molestation charges. "It humanizes them."

Weighing the risks

There are risks in putting Stewart on the stand. Her public persona as a perfectionist and domestic goddess is hugely popular but also draws scorn and envy in some quarters. In the 20 months since the questionable sale of her ImClone shares became public, she hasn't always come off well in the media, notably when she appeared on the CBS "Early Show" in June 2002.

Vigorously chopping cabbage, Stewart said she didn't want to answer a question about the ImClone stock sale because she wanted to "focus on my salad."

Then, she paused to predict that the investigation would be resolved and that "I will be exonerated of any ridiculousness."

She was indicted on criminal charges in June 2003.

"Toads come out of her mouth -- the jury won't like her," contended Heidi Fleiss, the "Hollywood Madam" who was convicted in 1995 on federal charges of money-laundering and tax evasion in Los Angeles in connection with the high-priced call-girl ring she once ran.

Fleiss, now a 38-year-old owner of a lingerie store called "Hollywood Madam," spent 21 months in prison -- and believes she would have been acquitted had her lawyers allowed her to testify.

Fleiss said her lawyers told her to keep mum, a decision she regretted because jurors were left with only the portraits of her painted by prosecutors and their witnesses, including actor Charlie Sheen, who paid her large sums for sex with women Fleiss procured.

"They made me look like the Anti-Christ," she said.

Fleiss said she believed her own testimony would have put her in a more sympathetic light because "jurors would have gotten where I was coming from and maybe even liked me."

Hanging on every word

In the Combs trial, "the jurors were mesmerized," Brafman said. "They leaned forward to linger on his every word," in a way they hadn't with any of the prosecution's five dozen witnesses. "The average juror never gets to have Puffy or Martha talk to him or her in an intimate setting."

Combs, who now goes by "P. Diddy," was acquitted after a seven-week trial in a Manhattan state court related to a December 1999 nightclub shooting that left three people wounded. Brafman said he believed the testimony of the rap star, now 33, while risky at the time, was key to the not-guilty verdict.

"It was brave for him to testify," said Eileen Coyle, a juror in Combs's case. "I thought: 'Wow! That's something you don't often see.' "

Another juror said he was leaning toward an acquittal after hearing the prosecution's case, but that Combs's own testimony "made me sure he didn't do it."

Combs hasn't spoken of his case since soon after it ended, and a spokeswoman said he won't comment now.

Credibility bolstered

There is ample precedent for celebrities' successfully testifying on their own behalf.

Arbuckle, a silent-film star, beat the charges that he had brutally raped a showgirl after his testimony. And Flynn won an acquittal at his 1943 rape trial after testifying that the two alleged victims, both underage, were willing participants.

Jurors in some recent lower-stakes civil cases confirm they counted on celebrities to testify -- even though they knew it wasn't legally required.

"A lawyer tells you 'My client doesn't have to take the stand,' " said Raymond O'Kane, a juror in the 2002 civil case brought by movie director Woody Allen against two producers he accused of cheating him out of $12 million. "But it's human nature to be skeptical," said O'Kane, an executive at a New York nonprofit group.

After Allen testified, O'Kane said, he was prepared to award the well-known plaintiff "a substantial amount." The nine-day trial ended in a settlement before jurors could deliberate.

Rolling Stones lead singer Mick Jagger took the witness stand in federal court in White Plains, N.Y., in 1988 to defend his song, "Just Another Night," against a reggae musician's charge of plagiarism.

Asked what he thought of the other musician's song, Jagger responded: "A lot of people in this courtroom don't like my music. Personally, I don't really like that song."

At the time, Jagger explained his decision to testify -- and even played some of his own song for jurors. "My credibility is on the line because of this," he said at the time of the trial. The jury found that Jagger hadn't stolen the song.

Then there was the 1991 rape trial of William Kennedy Smith, the nephew of Sen. Edward Kennedy of Massachusetts.

Accused of raping a woman at the Kennedy family's Palm Beach estate, Smith took the witness stand in a Palm Beach County, Fla., court to say he was "picked up" by a seductive woman who "sort of snapped" when he called her the wrong name during sexual intercourse to which she consented. He was acquitted.

Surprising acquittal

Robert Durst, the scion of a wealthy New York real-estate empire, didn't choose to become a celebrity. But the gruesome nature of the murder charges against him, along with the well-publicized 1982 disappearance of his first wife, kept him on the front pages for years.

In November, jurors in Galveston, Texas, acquitted Durst of killing his 71-year-old neighbor, Morris Black, though Durst, in his testimony at trial, admitted dismembering Black's body, dumping the parts into Galveston Bay and then fleeing.

The bizarre case, and surprising acquittal, hung entirely on Durst's own testimony, according to jurors in the case. While prosecutors painted Durst as a coldblooded murderer who killed Black to steal his identity, Durst said he shot Black in self-defense during a scuffle and then panicked.

"He was on the stand for more than two days and his story never faltered," said juror Joanne Gongora, a nursing educator.

"If you didn't have any testimony from him, you would have convicted him," said another juror, Donna Trosclair, a chemical-warehouse supervisor. "His testimony made all the difference."

Durst's lawyer, Dick DeGuerin, said he believed that most defendants -- especially celebrities -- should testify.

"If a celebrity like Martha doesn't testify, the jury will figure she must be guilty, even though jurors are sworn to the presumption of innocence."

'Only as a last resort'

There are several examples of celebrities who won acquittals without testifying. Rap star Snoop Doggy Dogg, whose real name is Calvin Broadus, was acquitted of murder charges at his 1996 trial in Los Angeles Superior Court, though he didn't take the witness stand. (He now goes by Snoop Dogg.) Former football star O.J. Simpson, too, was acquitted in 1996 of murdering his ex-wife, Nicole, though he remained at the defense table in Superior Court in Los Angeles.

And Robert Altman, the Washington lawyer who garnered fame as the husband of Lynda Carter, star of TV's "Wonder Woman" series, was found not guilty of criminal charges of fraud and lying to banking regulators after a five-month trial in a New York state court in 1993 in which he never testified.

"Only as a last resort would I put a defendant on the witness stand," said Gustave Newman, the attorney who represented Altman in what is known as the Bank of Credit and Commerce International, or BCCI, case. "It changes the perspective of the case and puts the entire focus on the defendant," rather than on the prosecutors who must prove their charges beyond a reasonable doubt.

Of course, Newman acknowledged: "If I'd lost, all of my colleagues would have said I should have put him on."

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