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Defense did well in cross-examination
By Scott Robinson
Rocky Mluntain News
Friday, April 6, 2007

The billionaire and the abbot. The title of a new TV sitcom?

No, the first two witnesses called by the defense in the Joe Nacchio trial, both of whom could pluck the heartstrings of jurors while establishing significant facts.

Portraying Joe Nacchio not simply as a corporate mover-and-shaker recruited by billionaire Phil Anschutz to head up Qwest but also as a caring father and decent guy who gave of his own time, passing out food to the poor in eastern Kentucky.

In criminal cases the defense witness list may be dictated by overall trial strategy, or it may be done defensively, in response to the perceived strength or weakness of the prosecution's case.

So what of the government's case?

Underwhelming is the single word that first comes to mind, but perhaps unfairly so.

The prosecution put on a workmanlike, meticulous and well-organized case but was hobbled by the dry nature of the testimony, the personalities of available witnesses and limitations placed on its evidence by Judge Edward Nottingham's rulings.

Prosecutors had the unenviable job of starting the trial with a crash course in Stock Market and Corporate Life 101. Not a lot of excitement there.

And the government could do little to alter the personalities of key witnesses, from the quiet former Qwest President Afshin Mohebbi and the understated CFO Robin Szeliga to the overeager stock analyst Drake Johnstone.

Finally, the narrowness of the indictment, limited to stock trading from January through May 2001, without accompanying allegations of accounting fraud, led to court rulings excluding evidence which surely would have helped the prosecution.

Evidence which included a $90 million asset transfer from Nacchio to his wife in February 2002, the extent to which Qwest stock eventually plummeted and Qwest's 2003 restatement, a retroactive $2 billion-plus downward revision of revenues between 2000 and 2002.

The indictment let prosecutors keep the case simple, but it also paved the way for successful defense objections to the admission of almost everything that occurred after May 2001.

As things stand, through defense cross-examination of prosecution witnesses, the jury has already learned:

  That Nacchio had to exercise his stock options or lose them.

  That advisers urged him to sell Qwest stock to diversify.

  That in January 2001, Nacchio had a perfect excuse to bail on Qwest and sell all his stock, if he truly believed the company was in financial trouble, because his son had been hospitalized after a suicide attempt.

  That the company had met its publicly announced revenue targets for 17 straight quarters until the third quarter of 2001.

  That the high revenue projections that numerous employees had warned Nacchio could not be met were not the public guidance figures but rather were "internal stretch budgets" designed to motivate personnel.

  That in ignoring the discouraging words of others, Nacchio knew what they did not: Qwest was negotiating for huge top-secret government contracts which would more than make up for dwindling one-time capacity sales and swaps.

Having accomplished so much during the government's case, it only makes sense for the defense to present a streamlined case, one involuntarily made even more aerodynamic by Nottingham's rulings excluding much if not all of the testimony of "super witness" professor David Fischel.

Barring the unexpected, Nacchio may choose not to take the stand in his own defense, thus eliminating even the possibility of high drama in the case.

That is, unless ego or worry about the verdict lead him to insist on testifying.

Then and only then will the fireworks truly begin.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.,2777,DRMN_23910_5467687,00.html