- The Washington Times - Tuesday, January 6, 2004

NEW YORK (AP) — 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 their favorite TV show.

The process falls somewhere between psychological analysis and mind-reading, legal professionals say. And the stakes are huge: The 12 persons ultimately selected will decide whether Mrs. Stewart is convicted or goes free.

While the questionnaire filled out yesterday by hundreds of potential jurors is being kept secret, legal analysts said Mrs. 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 Mrs. 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 lawyer in New York.

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

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

Attorneys 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 company Mrs. Stewart still partly controls.

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

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

If a juror lists the Christian show “The 700 Club,” that might indicate a strong sense of religion — and devoutly religious jurors tend to be more punitive, Mr. Berg said.

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

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

While Stewart supporters say she has been 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.”

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