sides skirted issue of reasonable doubt
By Anthony Accetta
Thursday, April 12, 2007
Closing arguments in the Joe Nacchio trial were a dizzying ride
on crosscurrents. Conviction or acquittal rests on Herbert
Stern, Colleen Conry and Cliff Stricklin's ability to persuade,
as well as on the jury's independent reaction to the evidence
each member saw and heard.
The outcome is far from certain. A hung jury is a possibility.
Until the last hour of the last summation, I would have
predicted a straight acquittal on all counts. Defense lawyer
Stern presented what he referred to as fact after fact to show
that Nacchio did not even have inside information, much less
that the government proved he used it illegally. Internal
arguments about budgets are not inside information, he said.
One-time deals were not one-time deals, he said. Nacchio had no
motive to cheat, he said. And, as he ticked off one feature of
evidence or another, he made perfect sense.
As he had done throughout the trial, Stern presented the human
side of Nacchio. Time and time again he asked, what would you
want or expect your chief executive to do under this or that
circumstance? And the implicit answer was always, "Exactly what
Joe did." Nacchio was a slave to the same information everybody
else had, Stern said. Wall Street provided the numbers that he
relied on and believed in.
Good faith. That's how Nacchio acted, Stern said. And he said
it with sincerity, and, pardon the pun, conviction.
Based on the Conry closing, and the apparent complete lack of
evidence presented by the government on what went on in
Nacchio's mind, it appeared a guaranteed acquittal.
But Stricklin, in the last hour, almost at the last moment,
finally provided the bite which has been so painfully missing
from the government's case. Until the last moment it appeared
as if the government was saying, "He's guilty because we say so,
and here's a bunch of things that happened to prove it. Here's
our word." But that changed.
Hammering away on a document the evidence says was backdated,
Stricklin finally put a face on Nacchio which a jury could look
at and say "Guilty." Attacking the "Joe is a victim" defense,
Stricklin said in plain English that Nacchio is a crook, a
wannabe "big boy" who cheated to make a fortune, and who schemed
his way to millions on the backs of innocent investors. He
ridiculed the idea that internal budget discussions are not
inside information. He delicately, but decisively, chastised
Nacchio and his entire team for interjecting personal tragedy in
the Nacchio family as an element of defense for doing criminal
The seeds of this attack were there. Just as surely, the seeds
of Stern's plea were there. The evidence allowed the lawyers to
argue just as they did. What was missing from all the
summations, shockingly, was only passing reference to the most
important element there is in a criminal case -- the concept of
reasonable doubt. Both sides treated the phrase "reasonable
doubt" as if it means little or nothing. Stern established a
dozen valid points which might create reasonable doubt on
important issues, but never asked the jury to identify the point
as justifying a not-guilty verdict. Neither Conry nor Stricklin
said the proof is there beyond a reasonable doubt, and here's
why. Today the judge will tell the jury all about reasonable
doubt, but no party has asserted to the jury that it has
established its side of the reasonable-doubt question.
What the jury is left with is opinions of the lawyers and
instructions from the judge on what the law is, and the evidence
itself as each jury member sees it. It is the jury which will
say whether there is reasonable doubt. Neither the prosecution
nor the defense dared take a stand on the issue. That may leave
the jury wondering if either side really believed what it said.
Anthony Accetta is a former assistant U.S. attorney in New
York and former first assistant attorney general and special
prosecutor in Colorado. He heads the Denver-based Accetta
Group, which conducts private financial due diligence and