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Jewish World Review July 19, 2004 / 1 Menachem-Av, 5764

Jonathan Turley

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The lost art of
the apology | Last week the public learned an important tip from Martha Stewart in her criminal case: Being contrite is fashionable but being sincerely contrite is strictly passe.

The sentencing apology has become a staple of American law. A defendant stands before the court free of the constraints of the rules of evidence or trial tactics. At this point the die is cast — the conviction has been handed down and the question is now one of contrition. If there is a time for self-disclosure, it is at this unique moment in a criminal case.

Sentencing day for Stewart, however, was vintage Martha Stewart Living. If one did not actually listen to the words, it was a perfect scene. Stewart stood before Judge Miriam Goldman Cedarbaum and spoke in a measured but intimate tone. It's not until one actually listened to the words that you realized that this scene was as perfect and as empty as one of Stewart's whimsical centerpieces.

"Today is a shameful day," she began. "It is shameful for me, for my family and for my beloved company and all of its employees and partners." She went on to explain that the shame was due to the fact that a "small personal matter" has been blown out of proportion. Leaving the matter in Cedarbaum's "competent and experienced and merciful hands," the statement was a formula piece for the guilt-challenged defendant; something for Martha Stewart Litigating. Stewart specifically took no responsibility for her actions despite the fact that her trial left little doubt as to her guilt. The small personal matter she referred to was actually a series of federal crimes, including lying repeatedly to federal regulators.

Like all convicted felons, Stewart had two obvious options. She could have defiantly claimed innocence, as many defendants seeking appeal have done. Or she could have actually apologized for her actions. Instead, she took an approach that is very much in vogue these days: the non-apology apology.

In politics and law, the apologies have become something of an art form.

President Ronald Reagan knew how to apologize. At the height of the Iran-contra scandal, Reagan went to the airwaves to apologize: "I take full responsibility for my own actions and for those of my administration." Of course, Reagan was not taking any responsibility at all since he insisted that he knew nothing about the widespread criminal conspiracy operating out of the White House. But turn off the sound and watch the tape. It was perfect.

The empty apology

"Today is a shameful day. It is shameful for me, for my family and for my beloved company and all of its employees and partners. What was a small personal matter became over the last 21/2 years an almost fatal circus event of unprecedented proportions spreading like oil over a vast landscape, even around the world. I have been choked and almost suffocated to death during that time." — Martha Stewart, July 16, 2004

The perfect apology

"I take full responsibility for my own actions and for those of my administration ... As disappointed as I may be in some who served me, I'm still the one who must answer to the American people for this behavior. And as personally distasteful as I find secret bank accounts and diverted funds — well, as the Navy would say, this happened on my watch." — Ronald Reagan, March 4, 1987

The non-apology

"Mere words cannot fully express the profound remorse I feel for what our country is going through and for what members of both parties in Congress are now forced to deal with ... I understand that accountability demands consequences, and I'm prepared to accept them." — Bill Clinton, Dec. 11, 1998

The grandmaster of the art of the non-apology apology was President Bill Clinton. Clinton understood that people have a natural affinity to the penitent man, but rarely forgive the truly guilty man. He spent a lifetime perfecting the non-apology apology: speaking in hushed, even emotional tones, while not actually admitting anything.

In fact, Clinton's non-apology apology about Monica Lewinsky was oddly similar to Stewart's. Where Clinton spoke of his affair being "unprecedented" and blown out of proportion by the media and prosecutors, Stewart spoke of a small affair being taken to "unprecedented proportions" by the media and prosecutors. Where Clinton spoke of the need "to repair the fabric of our national discourse," Stewart spoke of the need to "repair the damage wrought by the situation." The true meaning is not the words, but the gaps between the words: The real culprits were the prosecutors who caused this damage by pursuing them, not themselves.

For felons like Stewart, however, the inability to speak honestly and openly about mistakes can be fatal. After the government closed its case, it was clear that Stewart had to take the stand or be found guilty. The government had painted an image of a petty tyrant who did everything short of beating her subordinates with a riding crop. She would speak to TV personality Barbara Walters, but not to a jury. Stewart maintained the perfect appearance of a well-heeled defendant surrounded by celebrity friends such as Rosie O'Donnell and Bill Cosby. However, what the jury needed was to hear from Stewart, to have some reason to be sympathetic with her position.

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Testifying would have required Stewart to reveal something she had resisted her whole life: flaws. There was a simple reason why she changed a key computer message: She was scared. It was the type of honesty that can derail a government case. It is not easy or neat or rehearsed. It is the type of messy and uninhibited display that would never make the pages of Martha Stewart Living.

Instead, last week we saw the same tightly constructed Martha Stewart, speaking Hallmark card lines about how "her heart goes out to [Judge Cedarbaum] and to everyone in the courtroom" while jealously withholding the one thing that she was never willing to share: the truth.

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JWR contributor Jonathan Turley is a professor at the George Washington University Law School. Click here to visit his website. Comment by clicking here.

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02/03/04: Senate powder is the least of Congress' security concerns
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12/31/03: Celebrity is often its own best defense
12/27/03: U.S. soldiers lack best protective gear
12/17/03: Going for the gold in a competition of the corrupt
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11/04/03: Sniper case lacks appeal, public lessons of other cases
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05/23/03: Innocence doesn't pay, either
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04/16/03: End Apartheid in the State Prisons
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02/11/03: Sanity and Justice Slipping Away
01/28/03: Quit horsing around, senator
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12/19/02: Back to the admissions morass
12/10/02: Pro-Choice at Expense of Free Speech; NOW case against abortion protester may backfire
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10/08/02: A legal tattoo hullabaloo
10/02/02: Gagged justice sets dangerous precedent
09/25/02: The Great Salmon Rose Caper
09/17/02: Reparations: A Scam Cloaked in Racial Pain
09/12/02: This country's hidden strength
09/04/02: 1st Amendment protects even the ugliest among us
08/28/02: A secret court goes public
08/20/02: I defended Ashcroft during his nomination; he's become a constitutional menace
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07/22/02: The meaning of justice and the madness of Zacarias Moussauoi
07/16/02: The President vs. the Presidency
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06/24/02: Missing Ted Bundy
06/10/02: A comedy of eros06/14/02: 05/31/02: Beyond the 'reformed FBI' hype
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04/12/02: The importance of being nameless
04/05/02: The adjusted value of justice
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03/11/02: Profiling and the terrorist lottery
03/05/02: Yes, Sharpton, there was a failure of justice
02/28/02: The Lay of the land
02/14/02: Living in constitutional denial
02/05/02: Legal Lesson for Afghanistan: War's Not a Slip-and-Fall Case
01/25/02: Sever "Jihad Johnny"'s ties to his homeland
01/21/02: "Out of sight, out of mind," but they're still prisoners
01/14/02: Your papers, please!
01/07/02: Prescription for disaster
12/18/01: Madison and the Mujahedeen
12/07/01: In the U.S., espionage crime is easy to understand but difficult to prove
11/19/01: What type of 'creature' would defend bin Laden?
11/19/01: Could bin Laden be acquitted in a trial?
10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2003, Jonathan Turley