When Martha Stewart was indicted last month, her lawyers suggested gender played a key role in the prosecution. Was the domestic-decorating executive charged, the lawyers asked in a news release, "because she is a woman who has successfully competed in a man's business world by virtue of her talent, hard work and demanding standards?"
The government isn't waiting for a jury to answer.
The U.S. attorney in Manhattan, James Comey, appears to have quietly snatched the "gender card" from the defense's strategic deck. He tapped Karen Patton Seymour as lead prosecutor in the case against the founder of Martha Stewart Living Omnimedia, who is charged with securities fraud, conspiring to obstruct justice and making false statements. Jury selection is scheduled to begin in January.
"Gender bias matters" in this case, says Deborah Rhode, a professor of gender law and policy at Stanford Law School. "You want an effective woman prosecutor to neutralize the spin" that Stewart is being treated unfairly because she is a woman.
This isn't just a legal issue. The government action comes amid a public relations campaign by the Stewart camp to paint her as a victim of overzealous prosecutors. Comedian Rosie O'Donnell has been among the well-known women who have defended Stewart in the wake of the indictment.
The appointment of Seymour highlights the behind-the-scenes gamesmanship that often accompanies high-profile cases. But the gender issue is unusual in a business fraud trial, legal specialists say, because few women have been charged in such cases.
Seymour, the 42-year-old chief of the criminal division of the Manhattan U.S. Attorney's Office, is well-qualified to try the case against Stewart. But she won't be alone: Two male prosecutors will assist.
Seymour hasn't had much trial experience lately. With 170 lawyers to supervise and oversight responsibilities for high-profile securities-fraud cases against executives of the former WorldCom Inc. (now MCI) and Adelphia Communications Corp., Seymour hasn't had time to try a case since returning to the U.S. Attorney's Office from private practice in February 2002. Nor is she scheduled to try any others besides Stewart's.
"They're clearly trying to make it appear as two strong women doing battle with one another," rather than a man beating up on a woman, says Los Angeles jury consultant Jo-Ellan Dimitrius. "It's going to be a likability call _ how the female prosecutor may come across vs. how Martha may come across" to jurors.
The contrasts between Stewart and Seymour are striking. Stewart received compensation from her company totaling $2.2-million last year; Seymour's salary is about $115,000 (her annual pay when in private practice was roughly $400,000).
As in all trials, being liked by the jury is crucial. Stewart, 61, is widely viewed as a tough manager, and should she testify, she will certainly be coached on how to soften up. That could be less of a challenge for Seymour, who is low key and keeps her cool under pressure, colleagues and opponents say.
During a 1992 fraud case against Alan E. Rosenthal, a former associate of Drexel Burnham Lambert's Michael Milken, Seymour was unfazed by attempts by Rosenthal's lawyer to disrupt her summation argument. The lawyer, Peter Fleming, rustled papers and broke a pencil as Seymour spoke, according to two lawyers in the courtroom. Seymour carried on as if she were unaware of the interruption.
"She is resolute and determined, but has a winning personality," says Vincent DiBlasi, a former partner of Seymour's at the New York law firm of Sullivan & Cromwell, where she worked from 1996 to last year.
As an assistant U.S. attorney from 1990 to 1996, Seymour tried a number of high-profile cases. They didn't all go well: She failed in a bid to convict Nicholas Rudi, a former New Jersey public official accused in 1996 of accepting kickbacks for municipal-bond business. But Seymour won convictions in 1995 against a former AT&T Corp. executive and several others in one of the biggest insider-trading cases ever.
The AT&T matter showed her toughness. New York defense lawyer Anthony DiSarro _ who squared off against Seymour in a 1995 appeal relating to the AT&T case _ says she didn't "cut me a break" even though the two began practicing law together as associates at Sullivan & Cromwell in the 1980s.
"She fought tooth and nail all the way," DiSarro says. "She withstood my attempts to conjure up our longtime relationship." He adds: "I felt as if I was litigating against someone I never met."
Even though the case heated up, he says, Seymour "has a good temperament and doesn't lose her poise easily."
That attribute could be needed in the Stewart case. Robert Morvillo, Stewart's lead lawyer, has represented high-profile clients ranging from Saudi-born businessman Adnan Khashoggi to Robert Iler, a star on The Sopranos TV show, who recently pleaded guilty to petty larceny.
At 65, Morvillo is quick on his feet, funny, and usually plain-talking. But when he gets angry, he at times screams and bangs his fists, former opponents say.
Morvillo is on vacation and couldn't be reached to comment.
Should the gender issue be neutralized in the Stewart case, jurors would be able to focus on the real issue: Did Stewart lie to explain her sale of ImClone Systems Inc. shares?