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Experts agree it's risky business to allow defendant to take stand

By Jeff Smith

Rocky Mountain News
April 5, 2007


Does Joe Nacchio need to testify?

And what are the risks in doing so?

Those are two of the questions Nacchio's defense team may be assessing now that the prosecution has rested its case.

Defense attorney Herbert Stern told U.S. District Judge Edward Nottingham during a discussion at the bench Wednesday that the defense could decide as soon as noon today whether Nacchio will testify. But defense attorney John Richilano also indicated attorneys may want the weekend to decide whether the former CEO will take the stand.

During the conversation, lead prosecutor Cliff Stricklin asked that the government have at least 48 hours to prepare should Nacchio decide to take the stand, a transcript of the conversation states. Stern indicated that should not be a problem. Defense attorneys could wrap up their case within a day and a half, according to the transcript.

Although one can be sure the former Qwest CEO has been extensively prepped to take the stand, criminal defense lawyers said they reluctantly allow their clients to testify - even if they are convinced of their innocence.

That's because a defendant's testimony tends to shift the burden of proof away from the government, said Dan Recht, Denver criminal defense attorney and former president of the Colorado Criminal Defense Bar.

"Without the testimony, the jury is focused on what it should be - did the government prove its case beyond a reasonable doubt?" Recht said.

"Once he takes the stand, their analysis tends to change: Did the defendant tell the truth or not? Then it's left to the whim of the jury of whether they liked your client or not," Recht added. "You don't want a jury making decisions based on your client's personality."

Nacchio has played an active role in his defense, and many who know him believe he passionately wants to tell his story.

Nacchio can be charismatic, charming and witty, and has been pleasant during the trial. But he may come across to a jury as an aggressive executive from the East Coast with a quick temper, experts said.

Former Colorado Court of Appeals Judge and current Metropolitan State College of Denver professor Raymond Dean Jones, who specializes in corporate ethics and litigation, said he believes Nacchio has a "certain haughtiness and arrogance that I don't think people as a rule appreciate. . . . It would not play well with the jury."

Recht also said he believes Nacchio's personality increases the risk. He said he put one of his clients on the stand recently, "but it's scary when you do."

Experts said another reason not to put Nacchio on the stand is if the defense believes the government has failed to prove its case beyond a reasonable doubt.

"At this juncture, I don't see the need for him to testify," said Denver criminal defense attorney Jeralyn Merritt. "I think the defense has or will have brought out all of its points through cross-examination (already) or through the witnesses it's going to call."

Merritt said the final decision of whether a defendant will testify typically won't be made until the defense sees how its witnesses fare under cross-examination by the government.

Stricklin got a laugh Wednesday afternoon when he joked that the only way to resolve a contract backdating allegation would be for Nacchio to testify, "if he chooses."

Nacchio's defense team also may be wary of allowing its client to testify because of what has happened when other high-profile executives took the stand.

"All he has to do is look at Bernie Ebbers (former WorldCom CEO), and Ken Lay and Jeffrey Skilling (former top Enron executives)," Merritt said. "The jails are filled with people who thought that if they could only get their story out people could see it their way." or 303-954-5155