One-time Clinton White House legal adviser Walter Dellinger will take on the appeal for Martha Stewart after her sentencing Friday morning, and ABC News has learned the details of Dellinger's argument for a stay in her sentence pending appeal.
The appellate expert and former solicitor general, who argued nine cases before the Supreme Court, will steer legal efforts on her behalf from the time of her sentencing on — taking over for Bob Morvillo, who leads the defense team to that stage.
Dellinger has been working side by side with the defense team for several months to prepare appeal arguments, even as the defense offered now-thwarted arguments for a new trial, presentencing information to the Department of Probation, and Friday's anticipated arguments for a downward departure from the sentencing guidelines.
Stewart has been convicted on four counts, including conspiracy to obstruct justice, two counts of making false statements, and obstruction of justice, and is expected to face 10-16 months in prison.
But Dellinger will argue to Judge Miriam Cedarbaum that because Stewart's chances of winning an appeal are reasonable, the court should stay any sentence pending that appeal.
ABC News has learned Dellinger intends to focus on an overall pattern of unfairness. Points Dellinger is prepared to raise include:
The perjury by Juror Number 4 (Chapell Hartridge), who failed to disclose a 1997 arrest for domestic assault and an attempted robbery conviction for his son, and the decision to not prosecute.
The perjury by Larry Stewart, the Secret Service national ink expert, and the defense assertion that he is a member of the prosecution and that at least five other persons in the Secret Service knew of the perjury. Additionally, the defense asserts that it would have been reasonable for the government to have known of the risk of prejudicial testimony well before the end of trial, if not before the testimony was given.
In the government opening argument the assertion of an "insider tip" came up 17 times, yet the judge had ruled that the defense could not address the issue of insider trading before the jury. Dellinger is expected to state that when the prosecution talked about secret tips, they were using code for insider trading which the jury would understand.
That testimony by Stewart's best friend Mariana Pasternak that asserted Stewart knew when to sell her stock was allowed to stand, with no instruction to the jury, despite the fact that later Pasternak said she might have "imagined" the critical conversation.
That Martha Stewart's constitutional right to confront witnesses against her was violated when the prosecution introduced statements her co-defendant Peter Baconovic made to investigators, in which he said that he had never had a conversation with Martha's business adviser in which they agreed to sell her shares of ImClone if the price fell below $60.
That the judge did not order a hearing to determine if the prosecution was aware of Larry Stewart's perjured testimony.
That the inclusion of the securities fraud charge unfairly prejudiced the jury.