The Association of U S West Retirees



Nacchio's lawyers to seek retrial
Joe Nacchio's lawyers allege an error in jury selection.
By Jeff Smith
Rocky Mountain News
Friday, April 27, 2007

Joe Nacchio's attorneys on Thursday said they intend to seek a new trial based in part on grounds an error "may have been committed" when the court narrowed the prospective juror pool from 1,000 to 78 before the jury selection process.  The statement came in a motion filed by Nacchio's attorneys in U.S. District Court in Colorado to get the responses to the 1,000 pretrial questionnaires sent by the court to potential jurors.

"To the extent that (a) potential juror's answer to the questionnaire did not demonstrate bias justifying automatic excusal, the court's unknown method for winnowing the (pool) from 1,000 to 78 may have constituted error warranting the grant of a new trial," states the motion by Nacchio's attorneys.

Nacchio's attorneys point to Judge Edward Nottingham's decision initially to send out two questionnaires but ultimately only one, and not explaining fully on what basis he disqualified potential jurors.

Nottingham, who denied a defense request for a change of venue because of adverse publicity about Nacchio, allowed both the defense and prosecution to submit proposed questions.  He also made it clear in pretrial hearings that he would automatically disqualify prospective jurors whose family owned Qwest stock.

Legal experts have said the Nacchio defense team's argument about a fair jury is undermined somewhat by the fact that the team didn't use all of its challenges to excuse jurors.

Also Thursday, U.S. District Magistrate Judge Craig Shaffer ruled that the civil-fraud case against Nacchio should move forward.

Nacchio's attorney in the civil case, Joel Silverstein, argued that discovery, or the exchange of evidence, should remain frozen pending the outcome of Nacchio's expected appeal of the criminal conviction.

But Shaffer disagreed, saying there are other interests to take into account, including those of the other defendants.  There also are civil- raud claims pending against former Chief Operating Officer Afshin Mohebbi, former Chief Financial Officer Robert Woodruff and former accountants James Kozlowski and Frank Noyes.

Former CFO Robin Szeliga and former sales executive Gregory Casey have settled civil-fraud claims with the Securities and Exchange Commission. or 303-954-5155.,2777,DRMN_23910_5507286,00.html