THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON June 25, 2003

Obstructing justice can have
serious consequences


The obstruction of justice charge against Martha Stewart is but another illustration of how cover-up evidence can be far more damming than the actual conduct. Despite the fact that the stock transaction only saved her $45,000 and that her net worth plummeted by at least $300 million because of the negative publicity, the domestic diva could easily face a jail sentence if found guilty.

Martha Stewart will discover, much like Imelda Marcos and Leona Helmsley, that the more prominent a suspect is the more the media and public expect a thorough if not aggressive prosecution. As for judges and jurors, they are not known to shy away from bringing down powerful high profile individuals whenever there is sufficient evidence.

One of the lessons of obstruction of justice charges is that they tend to focus on those who consider themselves as above the law.

Richard Milhous Nixon

One only has to consider the 1974 Watergate scandal when President Richard Nixon was impeached for obstruction of justice and forced to resign. While he was publicly condemning any attempts to cover up, privately he was obstructing justice at ever level. His actions included making false statements to investigators, withholding evidence, counseling witnesses to make misleading statements, interfering with investigations of the FBI and approving payment of substantial sums of money to influence the testimony of witnesses.


William Jefferson Clinton

Bill Clinton was the second president in American history to be impeached. On December 1998 the House of Representatives approved two articles of impeachment, charging him with lying under oath to a federal grand jury and obstructing justice. The charge of obstruction of justice was built around the question of whether he sought to buy Lewinsky's silence by helping her find a job in New York. On February 12, 1999, his five-week impeachment trial came to an end, with the Senate voting 50-50 to acquit him. The prosecution needed a two-thirds majority to prove that his conduct amounted to an impeachable offence.

Accounting firm of Arthur Anderson


In June 2002 Arthur Andersen, one of the best-known accounting firms in the world, was found guilty of obstruction of justice for impeding an investigation by securities regulators into the financial debacle at Enron. Even before being fined $500,000 the firm agreed to cease auditing public companies, which effectively ended its 89-year-old life. The charge resulted from the shredding of thousands of records and deletion of tens of thousands of e-mail messages relating to the Enron scandal.

Back to Martha Stewart

According to the federal government Martha Stewart obstructed justice by lying to investigators, falsifying records and conspiring with her stockbroker in order to conceal the fact that she had been tipped off before selling her shares. Stewart on the other hand denies any guilt and maintains she had an order to sell her stock when it went below $60. Her lawyers have gone as far as accusing the Department of Justice of targeting her to "divert attention from the misdeeds of the politically connected managers at Enron and WorldCom."

The fact that she dumped her stock precisely the day before the government issued discouraging news about the company's cancer drug wasn't the only reason why her conduct aroused suspicion. The discrepancy between her and her Merrill Lynch broker on when the order was placed is but another element.

Equally relevant is her friendly relationship with the company's former CEO, Samuel Waksal. Early this month he received a 7-year prison sentence on insider trading charges for allegedly tipping off family members and friends that the FDA had declined to review ImClone's new cancer drug.


Stewart doesn't have to worry about ending up behind bars because of the charge of inside trading. The Securities Exchange Commission only filed a civil complaint, which by itself cannot result in a jail sentence. Convicting someone of insider trading in a criminal case requires proof "beyond a reasonable doubt. Because of the civil complaint the SEC will only have to prove that Stewart likely committed insider trading.

The law in Canada

Here in Canada, article 139 of the Criminal Code stipulates what proof is required before an accused may be convicted of obstructing justice. The most common charge stems from paragraph 2, which states that, " Every one who willfully attempt in any manner ... to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years. As with most prosecutors, I had the occasion to authorize hundreds of such charges throughout my career.

The term, "course of justice" has been interpreted by our courts to include judicial proceedings, police investigations and just about any decision making body whose authority to judge in a judicial manner derives from a statute.

Obstructing justice can occur under numerous circumstances. For example, any attempt to pay a witness not to give evidence in a judicial proceeding is a corrupt attempt to obstruct justice. Similarly, the witness who accepts the bribe also commits the crime. The mere attempt to dissuade someone from reporting an automobile accident to the police can amount to an obstruction of justice. The same is true for anyone who approaches a potential witness and urges him not to tell the truth to the police or to lie during a judicial proceeding. A lawyer who calls a witness knowing that he will lie and mislead the court is also liable to being convicted of this offence. Of course, proving the offence is an entirely different matter.

While a suspect has a right to remain silent, the law does not protect him when he makes a false statement to the police. However in practice, lying to police investigators doesn't usually result in a separate charge. If it did our already overloaded court dockets would be flooded with an avalanche of cases.

Conclusion

Only time will tell whether the US prosecutor insisted on making an example of Martha Stewart because of her fame and fortune. Even if he did it should not jeopardize her right to a fair trail. Not only is she a tough businesswoman who can take this sort of pressure, she is also represented by a top-notch team of experienced attorneys.

Still, even if acquitted she is likely have a dark cloud hanging over her head. Perhaps this is one of the few inconveniences to being rich and famous.