Friday, December 24, 2004

Martha's Reply Brief and More

Attorneys for Martha Stewart filed a reply brief that includes a strong argument based on the case of Crawford v. Washington, a case in which Justice Scalia, writing for the majority stated, " [w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."  This reply brief argues that the government's use of Peter Bacanovic's testimonial statements violated Martha Stewart's right to confrontation as required by the Crawford decision.   

In the initial passages of this portion of the Reply Brief, defense counsel argues that

   "in more than 56,000 words, the Government nowhere disputes that:

  • Bacanovic's statements were made in a 'testimonial' setting; and
  • Were used against Stewart;
  • To prove the truth of the matters asserted."

It would not be surprising to see this Crawford argument and the first argument made by defense counsel in their original brief as the key issues at oral argument.  The first argument was:

"Whether, after a trial pervaded by allegations that Stewart had committed the uncharged crime of insider trading, the District Court erred by: (1) refusing to instruct the jury that it could not convict Stewart of insider trading and could consider evidence of uncharged conduct only for a limited purpose; and (2) barring Stewart from rebutting the Government’s allegations or explaining to the jury that she had not committed insider trading."   

(See also Post of Nov. 3, 2004 which includes Stewart's initial brief.) 

In a holiday message, Martha Stewart wishes everyone a happy holiday and also gives us her thoughts on women in prison.  She says, "I beseech you all to think about these women -- to encourage the American people to ask for reforms, both in sentencing guidelines, in length of incarceration for nonviolent first-time offenders, and for those involved in drug-taking."

Professor Myrna Reader (Southwestern) has written some wonderful pieces on the issues faced by women in prison.  For a primer, check out her Introduction in 16 Criminal Justice Magazine 4 (2001), titled  "Female Offenders: An Introduction."  It is wonderful to see Martha Stewart joining as an advocate to correct deficiencies in our justice system.


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