counts + 12 jurors = 1 mystery
By Al Lewis, Staff Columnist
Friday, April 13, 2007
Joe Nacchio walked out of the courtroom Thursday with only one
remark for the media.
"I love my lawyers," the former Qwest CEO said.
His smile seemed less certain than earlier in his 3 1/2-week
trial. His eyes -- always behind stylish rectangular glasses --
reflected anxiety and fear. The jury had begun deliberating 42
counts of insider trading. Who can predict what 12 disparate
souls will decide?
A mortgage broker, a radiographer, an engineer, an Air Force
retiree, an office worker, a bookkeeper, an airline captain, a
maintenance supervisor, a small-business owner, a manager at a
financial-services company, a retired furniture-store owner and
an administrative assistant for an oil company.
What will they say about this man who once commanded thousands
of employees and billions of dollars' worth of
telecommunications assets? Will they send him to prison for
trading his stock? As if seeking an answer, Nacchio scanned
their faces as federal Judge Edward Nottingham read jury
The brashness, which has so typified Nacchio, was gone. He took
comfort from his wife and son -- who had walked beside him
during photographed entrances and exits -- and his six lawyers
who surrounded him as he left the courtroom.
Nacchio's lawyers did not seem as jovial as prosecutors, who
smiled as they gathered their coats and briefcases. If
prosecutors lose, their client is not going to prison, and
justice was still served.
"The government wins when justice is done by a jury," Nottingham
said in his instructions, "regardless of whether the government
wins or loses" at trial.
When prosecutors rested their case last week, I wrote that if I
were on the jury, I'd be thinking about an acquittal.
The defense -- also feeling confident prosecutors hadn't made
their case -- only put forth three witnesses. In closing
remarks, Nacchio's attorney Herbert Stern told the jury that he
offered two of these witnesses -- Qwest founder Phil Anschutz
and Catholic abbot Giles Hayes -- only because he had promised
them in his opening arguments. He said he otherwise would not
have bothered because prosecutors hadn't made their case.
Prosecutors, however, gained momentum this week. They scored
key testimony in cross-examining defense witnesses, including
statements that Nacchio could have held his shares when he
exercised his options instead of dumping them.
Colleen Conry, an assistant U.S. attorney, gave riveting closing
arguments, piecing together an incriminating mosaic from little
tiles of evidence. She also coined what may become the
trademark phrase for a case that alleged Nacchio withheld
information as he dumped his stock: "If you don't tell, you
U.S. Attorney Cliff Stricklin's rebuttal seems to have
dismantled several points that Stern had made in more than five
hours of closing arguments. Stricklin also emphasized a
backdated memo giving trading instructions to Nacchio's broker.
"You know that it's been backdated because Mr. Stern concedes
that it is," Stricklin said. (Stern described the memo that
appears to have been drafted in mid-December as a
memorialization of a Nov. 3 understanding to sell stock.)
Stricklin deftly twisted the knife: "Mr. Nacchio put his
signature on this document because he knew" what was really
happening at Qwest. "... This backdated document was a way to
cover his tracks."
Nacchio was shaken after Stricklin's performance Wednesday,
particularly after Stricklin inferred that Nacchio used a story
about his son's attempted suicide as cover. Who can sit calmly
as the clock ticks and the accusations fly?
By Thursday morning, Nacchio appeared recovered, though still
What was he thinking when he sold all those shares? Was he
greedy? Mistaken? Careless? Or did he knowingly cheat?
Nottingham told the jury they must decide whether Nacchio had
nonpublic, material information, and whether this information
was a "significant factor" in his decisions to sell his stock.
To do this, they must infer from the evidence what was inside
Nacchio, perhaps wisely, never took the stand. And, for now at
least, he says he is pleased with his attorneys.
Al Lewis' column appears Sundays, Tuesdays and Fridays.
Respond to Lewis at denverpostbloghouse.com/lewis, 303-954-1967