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AMERICAN MORNING

Martha Stewart Case

Aired January 6, 2004 - 09:14   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BILL HEMMER, CNN ANCHOR: First phase jury selection starts today in the Martha Stewart matter. She's accused of three things: securities fraud, obstruction of justice and making false statements, all related to her sale of ImClone stock.
CNN's senior legal analyst Jeffrey Toobin back with us.

Good morning.

First of all, there's going to be a questionnaire that these jurors, potential jurors, have to fill out. How common is that?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: In high-profile cases, it's become pretty much standard, and they are quite detailed. A lot of demographic information, where you live, income, racial, gender. But mostly, it concerns knowledge of Martha Stewart, knowledge of the defendant, how much you know about the charges, what connection you've had with Martha Stewart? Do you read her magazines? Do you watch her on TV? And in this case, larger questions about your involvement in the stock market, whether you've loss money, whether you're an investor, that sort of thing.

O'BRIEN: Two areas of interest then, what do you know about Martha, and what do you know about the stock market based on your own experience?

TOOBIN: Correct.

O'BRIEN: Would jurors try -- well, I don't know if you're a defense attorney or prosecutor in this case, but do you try and keep jurors out who have lost money in the stock market?

TOOBIN: Tough question here, because I think the defense will want to keep angry investors off the jury, because they may be looking for a scapegoat for their problems.

Mostly what you want to do is get a picture of the kind of person. What makes jury selection here so interesting is that there is not an absolutely predictable profile of someone who is a pro- Martha or anti-Martha juror. So you're going to want to get as much information as possible. An then in the last days of jury selection, interview them in person to get a sense of what kind of person they are.

O'BRIEN: So you're suggesting this is more art than science?

TOOBIN: Absolutely. And jury selection is the most difficult, but the most intriguing part of being a trial lawyer, because you never really know what you're getting.

O'BRIEN: Away from white collar crime and violent crime, have you ever filled out a questionnaire?

TOOBIN: Well, in the Oklahoma City Bombing case, which was a violent crime of course, there was a questionnaire there. It's basically cases that have received a lot of media attention, you do the questionnaires. It's a way of going through a lot of jurors in a short period of time, so you can read their questionnaires, rather than question them all individually.

O'BRIEN: She was talking last month, Larry King did an interview with Martha Stewart, Barbara Walters did as well. Why would she seek out that platform a month before the trial?

TOOBIN: I think one of her biggest problems, is that she has a reputation as kind of fearsome, as a perfectionist, as someone who is personally unpleasant. What she's done is a very calculated PR offensive to say, hey, I'm a human being, too, I have suffered here. I'm just trying to -- you know, a regular working girl trying to...

O'BRIEN: Softening the image?

TOOBIN: Softening the image. And you know, in the hopes of affecting the jury pool. Whether that stuff works, I'm somewhat skeptical. I believe jurors mostly pay attention to the evidence. But image matters.

O'BRIEN: Short time left here. Go back two years ago. Initially, were prosecutors going after an insider trading allegation?

TOOBIN: Absolutely.

O'BRIEN: And in fact, the whole case -- if she had simply said nothing to investigators, there would be no case here. If she had simply done what criminal lawyers always tell their clients to do, which is don't answer questions, there would be no case here.

O'BRIEN: What you're suggesting, had she not even spoken in the first place, this wouldn't be in court?

TOOBIN: Absolutely.

O'BRIEN: What about the others around her who might have been involved?

TOOBIN: That was just their false statements, alleged false statements. She, because she's a public figure, answered questions from the U.S. attorney. If she had simply said, I'm taking the Fifth, I'm not answering questions...

O'BRIEN: How badly do you think she wants to take the stand? You talked to her, right?

TOOBIN: I did. This is a woman who is furious about this. She has a story to tell. She doesn't have a prior record that she can be impeached with. Obviously, her lawyers won't decide until the last minute whether to put her on the stand, but my guess is she will go. And that will be good to watch. I can't wait.

O'BRIEN: Thanks, Jeff.

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