Martha Stewart told a federal court, in an appeal made public Thursday, that she shouldn't be incarcerated. In the meantime, she is making the most of her days in a federal prison camp, according to her attorney.
Stewart, 63, began serving a five-month sentence earlier this month and is adjusting well, said her appeals attorney, Walter E. Dellinger III, who visited the multimillionaire businesswoman in Alderson, W.Va., last week to discuss the filing of her appeal.
She and a group of other inmates have been doing some experimental cooking in the evenings, using the prison microwave and the limited ingredients available to make "creative food" for evening snacks, Dellinger said. One effort involved saving hard-boiled eggs from the prison kitchen and then using noodles and other flavoring to make an Asian-style dish.
Stewart is exercising daily and working as a member of a prison detail that does a variety of tasks, including cooking and cleaning, he said.
"I was very impressed with what a positive experience she has managed to make this," the lawyer said in an interview. "She is so resilient that she is clearly making the best of it."
Stewart said in her appeal, which was filed late Wednesday and released Thursday, that her criminal trial was "fundamentally unfair" and that her obstruction, conspiracy and lying convictions should be overturned. Stewart chose to report to prison even though she could have remained free while her appeal was pending, saying she wanted to get her ordeal over and return to her business and the life she loves, including planting her spring garden.
Since she reported to the prison camp in Alderson in the pre-dawn hours of Oct. 8, Stewart has been flooded with more than 10,000 pieces of mail, and she recently posted an appeal to her fans on her personal Web site, www.marthatalks.com. "I have been told that some of these letters have included gifts and money. Please know that while these gestures of friendship and support are deeply appreciated, any such items must be returned to the sender by prison officials," Stewart wrote, asking that fans make a charitable donation instead.
Stewart will almost certainly have completed her sentence by the time the U.S. Court of Appeals for the 2nd Circuit rules on her appeal, she and her lawyers said. But they pressed hard for her exoneration in the 87-page appeals brief, writing that the trial of Stewart and her former broker Peter E. Bacanovic had been tainted by insider trading accusations that they should have been allowed to rebut.
Stewart and Bacanovic, 42, were convicted of obstructing an insider trading investigation and lying about the reasons for her December 2001 sale of ImClone Systems Inc. stock. Neither was charged with criminal insider trading, though the Securities and Exchange Commission has a civil case pending against them.
Dellinger and the legal team at O'Melveny & Myers LLP also argued that Stewart's constitutional right to confront her accusers was violated when prosecutors played audiotapes of Bacanovic's SEC testimony that contradicted what Stewart told the same investigators. Since Bacanovic never took the stand, Stewart's lawyers were not able to cross-examine him. The defense said that violated Crawford v. Washington, a U.S. Supreme Court decision that came down shortly after the trial ended.
Bacanovic's lawyers made the same argument in an appeal filed Wednesday, saying Stewart's statements should not have been used against him.
The brief also cited allegations that both a juror and a government ink expert lied during the trial. "Together they make an overwhelming case for setting aside this verdict," the brief said. The ink expert was found not guilty of perjury earlier this month.
The U.S. attorney's office in Manhattan, which prosecuted Stewart's case, declined to comment.