That's the money line, and if Nolan were defending Martha Stewart, he'd build his whole case around it.
The consensus: Stewart's case is certainly winnable, though her opponent, U.S. Atty. James B. Comey, is off to a strong start.
For one thing, Comey didn't make Stewart do the "perp walk." Some prosecutors like to slap handcuffs on high-profile defendants and parade them in front of the news media for maximum humiliation. There is a trend away from this practice, experts said, and Comey was well-advised to avoid it in Stewart's case, lest it backfire and build sympathy for her.
Another smart move was Comey's choice of criminal charges, lawyers said. He refrained from hitting Stewart with a splashy but tough-to-prove insider-trading charge, leaving the Securities and Exchange Commission to pursue that in a civil suit.
Still, attorneys say there are strategies that could tip the scales in Stewart's favor. Here are a few of them — some already being pursued by Stewart's defense team:
Nolan calls ImClone "a SoHo stock," referring to the trendy Lower Manhattan neighborhood where thirtysomethings have been known to hang out and talk about getting rich. The implication is that because of Waksal's visibility as a New York socialite, his company was undoubtedly the subject of cocktail chat among young professionals.
"I bet there are 25 people who traded that stock" and could have been pursued by the government, Nolan said, "but they're only charging her." In other words, Nolan's mantra to the jury would be that the government has singled out Stewart for prosecution because she's rich, famous and female.
Attack the Weakest Link
The shakiest part of the indictment, defense lawyers agree, is the securities-fraud count.
The government contends that Stewart issued news releases last June that gave a false description of events surrounding her ImClone trade. By making those false statements, the indictment states, Stewart was attempting to protect the value of the stock of her own company, Martha Stewart Living Omnimedia Inc., and thus was defrauding the investing public.
"How can they tell whether she was trying to manipulate the stock or just protect her own reputation?" asked Rusty Hardin, the theatrical Houston litigator who represented accounting firm Arthur Andersen after the Enron Corp. bankruptcy.
It is this uncertainty, Hardin said, that he'd keep pounding away on. "So much depends on their interpretation of what she knew and meant when she said certain things."
Any case that hangs on a defendant's private intentions, said Hardin, a former government prosecutor, leaves ample opportunity to sow reasonable doubt in jurors' minds.
"I would use that trumped-up charge" on securities fraud, Nolan said, "to adversely impact the other charges."
Face Inconvenient Facts
One troubling accusation for Stewart is that she opened a phone log on her office assistant's computer, temporarily changing a potentially incriminating message from her broker, Peter Bacanovic.