Martha Stewart and Our Shadow Legal System by William L. Anderson and Candice Jackson

William L. Anderson and Candice E. Jackson write:

"While we can see why some might fault our reasoning, there is a deeper-held reason why we believe that Martha Stewart should be a free woman today. We hold that the federal criminal system that convicted her is an abomination to justice and is the destroyer of those precious 'Rights of Englishmen' that this nation inherited from Great Britain (and especially the famed jurist William Blackstone) more than two centuries ago. What exists today in the federal courts is nothing less than a shadow justice system, an evil twin of the common law that served us so well for so long, a system that keeps the trappings of common law, but is more like Stalin’s Soviet Union than Blackstone’s England...

"... the federal criminal system is nothing less than a mechanism that permits prosecutors to do an end run around the Constitutional protections that the framers of that document believed were the natural rights of individuals... modern federal criminal laws and policies hold much more in common with Josef Stalin’s U.S.S.R. in the 1930s than it does the Constitution of the United States.

"... most federal crimes actually are 'derivative' in nature. That is, they are not actual criminal acts, but rather are activities that have been criminalized because of ties to other things the accused person may have done...

"Keep in mind that Stewart 'cheated' no one; she simply sold her stock in an open market, something that hundreds of other owners of ImClone stock were doing at the same time. Had Stewart 'cheated' anyone, she could have been charged with a real 'securities fraud' charge, not the overreaching charge that even the anti-Stewart New York Times editorial board agreed was ridiculous.

"... today the criminal law has strayed far from its historical roots... an act does not have to harm anyone in order to be criminal in the federal system. In fact, the vast majority of federal crimes involve activities for which there was no harm, just a violation either of a federal rule or regulation, or something of that order. In the Stewart case, prosecutors were able to weave a series of charges around an act that the government apparently did not believe was criminal – or they would have unloaded a criminal charge of 'insider trading' against her and Bacanovic, something that prosecutors knew they could not prove in court – even federal court, where rules of evidence tilt heavily toward the prosecution...

"The law, which lawyers usually call 1001, for the section of the federal code that contains it, prohibits lying to any federal agent, even by a person who is not under oath and even by a person who has committed no other crime...

"Ms. Stewart was convicted of obstruction of justice and making false statements to F.B.I. agents and investigators from the Securities and Exchange Commission who were investigating her for insider trading...

"But Ms. Stewart was never charged with criminal insider trading, suggesting that if she had simply told investigators the truth she would not have faced criminal charges. The only counts the jury considered related to her behavior during the investigation.

"People lie all the time to colleagues, friends and family... and unless they are legal experts they probably do not know that lying to any federal investigator is illegal even if they are not under oath.

"And F.B.I. agents and other investigators usually do not tape-record their conversations, so people can be convicted of making false statements based only on an investigator's notes, which may not exactly reflect what was said.

" 'Any casual conversation between a citizen and a person of the executive branch is fraught with the possibility that you can be convicted of lying,'... If the government wants to make sure it is being told the truth... it should put people under oath. 'That's why we have perjury laws – because we tell people this time you're under a special formal obligation to tell the truth,'... 'And by the way, you'll notice it doesn't run in both directions, so a federal agent can lie to you, can trick you, in order to get information.'

"Thus, we find ourselves at the purpose of the crime of 'obstruction of justice,' of which 1001 is a part. The purpose is to trap someone under investigation who otherwise might not be prosecuted for a crime. We emphasize this point again: The purpose of this law and many others in the federal system is to create crimes (and criminals) where none might exist...

"Moreover... the law runs only one way. Federal investigators and prosecutors regularly lie during conversations with those who are targeted... the F.B.I. in its training manual for new agents tells them that individuals who are targeted for investigation 'have forfeited their rights to the truth.'...

"We believe that Stewart went into her interviews with government agents in good faith... Furthermore, prosecutors at that time were talking about charging her with insider trading, and no doubt had laid down some veiled – and not-so-veiled – threats against her. A congressional committee already had illegally leaked testimony about her (yes, another felony that the government did not see fit to pursue) and the press already was baying about Martha in prison stripes.

"It is almost certain that federal investigators tried the same bully-boy tactics on Stewart, and given the history of lying by the feds, we are not fully convinced that Stewart and Bacanovic were guilty as charged. Certainly, the jurors did not base all of their verdicts upon the facts; as we noted in another article on this subject, the jurors believe that Stewart and Bacanovic were 'arrogant' and in their minds thought perhaps they should be punished for being who they were, as opposed to what they might have done.

"Instead, we see Martha Stewart going to prison because she... made the misjudgment of thinking she simply could sit down and talk to federal investigators. A law from which some government employees are exempt ultimately trapped her – as it is supposed to do.

"[The federal system] does not protect citizens from the state; instead, it gives the state all of the weapons (federal prosecutors like to call them 'tools') it needs to declare everyone a criminal."

Martha Stewart and Our Shadow Legal System by William L. Anderson and Candice Jackson