has a tiger in his corner
Aggressive attorney Herbert Stern has succeeded in getting
convictions - and avoiding them, too
By Jeff Smith
Rocky Mountain News
Friday, January 13, 2007
Herbert Stern spent his early career putting corrupt
officials behind bars. As a top federal prosecutor in New
Jersey, Stern helped convict eight mayors, a U.S.
congressman and dozens of other public officials, earning
him the label "Tiger in the Court" in a 1973 book by the
same name. "No target was too big," the late Paul Hoffman
wrote about Stern's exploits. "To the consternation of the
State Department, Stern indicted the head of the French
secret service on charges of conspiring to smuggle $12
million worth of heroin into the United States."
Today, Stern, 70, is on the other side of the fence, working
to exonerate the U.S. government's biggest target in its
five-year investigation of Qwest Communications -- former
Qwest CEO Joe Nacchio.
Nacchio faces 42 counts of insider trading. He is accused
of selling $101 million of stock in the first five months of
2001 while knowing the Denver telco's financial condition
was slipping. He has denied wrongdoing.
Stern's background reveals that federal prosecutors are up
against an attorney known for ferociously and skillfully
defending his clients.
"I spent over a year locked in a very combative matter with
Stern," said David Barasch, a former U.S. attorney in
Pennsylvania, of a case a decade ago. Stern was defending a
public official being investigated for racketeering. "I
found him to be in my dealings very bright and very
As far back as the 1970s, Hoffman described Stern as being a
"master of the subtler tricks of the trade." He wrote that
when opposing witnesses were on the stand, Stern would
"glance at the jury box, indicating with a grimace, snicker
or an arched eyebrow a message like 'Do you really believe
Stern has yet to go in front of a jury in the Nacchio case
-- the trial is scheduled to start March 19 -- but there's
little to suggest his style has dramatically changed over
During pretrial hearings in Nacchio's case, Stern initially
appeared soft-spoken and casual. But his tiger claws come
out when he feels his client's position has been aggrieved,
and he's quick with a quip or raised eyebrow.
His firm has written long court motions, challenging the
government's lack of specifics in its indictment and the
evidence itself. Prosecutors were ordered to provide more
details about their allegations.
When rebuked in court, Stern has displayed what Hoffman
characterized as a "look of injured innocence."
U.S. District Judge Edward Nottingham is prone to mumbling.
One time, when Stern was attempting to clarify instructions,
Nottingham bristled. Stern was deferential, apologizing for
not being able to hear as well as he once did.
Then there's the fact that Stern was a federal judge,
serving from 1974 to 1987.
The Wall Street Journal
pointed out in an Internet blog last year that his secretary
still answers his phone as "Judge Stern's office."
When the Journal
reporter called Stern to ask him about using that title two
decades after leaving the post, Stern reportedly interrupted
the reporter and added: "Let me ease your pain. You can
call me Herb and we'll get along just fine. OK? I gotta
Stern's assistants were still answering the phone "Judge
Stern's office" last week.
An ego to match
Like most former federal judges or trial lawyers, Stern has
a strong ego.
In 1984, he wrote a book about himself,
Judgment in Berlin,
about presiding over an airplane hijacking case in West
Berlin in 1979. The book was made into a movie, with Martin
Sheen playing Stern.
And, in a recent short conversation to schedule an
interview, Stern casually mentioned he has written many
books about trial work (a five-volume set entitled
Trying Cases to Win),
has lectured around the country and co-founded the
University of Virginia Law School's trial advocacy
"I've had a real interesting career," he said. "I don't
mean that in a boastful way. I've been very lucky."
Stern called a few days later to cancel the scheduled
interview, saying he didn't think it would be good for
Nacchio "for many, many reasons" if he participated in the
He ended the short voice mail saying he hoped the reporter
would have good luck doing the profile. "I hope I haven't
offended you, and I wish you well."
Stern has long been considered skillful at handling the
press and picking his spots to show his client in the best
One of the only formal statements he has issued in
connection to the Nacchio case came last spring after
reported that Nacchio was the only major telco chief
executive to refuse the National Security Agency's request
in the fall of 2001 to obtain the private telephone records
of customers. Parts of the newspaper report have since been
Stern issued a statement saying that Nacchio concluded the
NSA requests violated privacy laws. Stern added in the
statement that the NSA requests, and Nacchio's refusals,
continued until his departure from Qwest in June 2002.
Dentist or fireman
Stern was born on Manhattan's east side in 1936, the only
child of a post office worker turned attorney, and the
grandson of a Hungarian Jewish immigrant.
Hoffman wrote that Stern's parents wanted him to become a
dentist while he dreamed of being a fireman. But Stern got
intrigued by trial work when he ran across some of his
father's case files when he was about 10 years old.
Stern was described as bookish, receiving a liberal arts
degree from Hobart College and a law degree from the
University of Chicago.
His first job was as assistant district attorney in New York
County, under legendary Manhattan district attorney Frank
Hogan. A four-year stint in the homicide bureau propelled
Stern into the trial work he sought.
And when Malcolm X was gunned down by three men at a rally
in Manhattan in 1965, Stern took charge of the
investigation. Within a week the police had arrested two
men in addition to a man nabbed at the scene. Stern
presented the case to a grand jury and got the indictments
but left the district attorney's office before the trial.
While the three men were convicted, it remains a mystery
about who may have ordered the killings.
In the Hoffman book, a former public defender is quoted as
saying that Stern at that time "never had any sympathy for
defendants. He always made it a personal thing. All
defendants that came before him he treated with the same
Stern was only 36 when he became the U.S. attorney in New
Jersey after serving as the chief assistant.
During his tenure, the U.S. attorney's office in New Jersey
indicted more than six dozen federal, state and local
officials, and a number of organized crime figures. Only a
handful were acquitted.
Tom Coghill, a former federal prosecutor in New York who
spent 38 years as a lawyer, recalls that Stern's name popped
up quite frequently in the newspapers.
"He was pretty high profile," said Coghill, now special
adviser in Denver to the Cheyenne Capital Fund. "He had an
outstanding reputation at the time, he was a very successful
prosecutor. But how many cases he actually tried, I don't
President Nixon appointed Stern to the federal bench in
In 1979, Stern presided over the trial of hijackers in
Berlin. A plane had been hijacked and landed at a U.S. Air
Force base in West Berlin, and the U.S. assumed legal
jurisdiction. Stern was assigned to conduct the trial.
He ruled the defendants had the right to be tried by a jury,
despite prosecutor objections. And he reportedly upset the
U.S. State Department for being independent-minded and
impartial, rather than being under the government's thumb.
Many would have retired as a judge. But Stern, at age 50,
decided to leave the bench in 1987 and go over to the
criminal defense side.
While some believed he did it for the money, Stern told his
alma mater Hobart College that he wanted to round out his
"I had never represented a private client," Stern said, "and
I didn't want to end my legal career without doing that."
He spurned an offer by a big New York law firm, instead
joining a small New Jersey firm, now called Stern &
His clients included then-Pennsylvania attorney general
Ernie Preate Jr., who was being investigated for
racketeering just as he was beginning a run for governor.
From media reports, Preate seems similar to Nacchio in terms
of a strong personality, confident of his innocence and
ability to outsmart others.
But Preate, just before being indicted, pleaded guilty to
one count of mail fraud -- connected with taking $20,000 in
secret campaign contributions from operators of illegal
video poker machines.
Stern tried fiercely to get probation for his client. But
prosecutors, armed with additional evidence, won a 14-month
prison sentence for Preate.
Barasch, the U.S. attorney in Pennsylvania handling the
case, remembers Stern as a tough, formidable adversary.
But Barasch said he doesn't know whether Stern's
aggressiveness was a tactical decision in response to the
wishes of his client or his general approach to criminal
"I certainly saw his 100 mile per hour fast ball," Barasch
said. But he added Stern may also have a terrific curve,
change-up or knuckle ball as well.
Stern's law firm is small, with only about 20 attorneys, but
it has had a number of high-profile cases.
Nacchio switched to Stern as an attorney from Charles
Stillman in November 2005 just as prosecutors prepared to
seek the insider-trading indictment.
Nacchio hasn't said why he decided to change attorneys, but
the new team immediately started to float a national
The possible defense is that Nacchio possessed classified
information that made him optimistic about Qwest's ability
to land lucrative and sensitive government business.
Such a defense creates problems in terms of how to handle
evidence during a trial. And it sets up a possible appeal
if Nacchio is convicted and certain evidence wasn't allowed
to be heard.
The strategy didn't stave off the indictment, but it did
cause prosecutors to re-evaluate their case and delay the
indictment by a month. It also has resulted in a number of
closed hearings, including one Friday, in which the parties
are wrangling over which evidence should be allowed to be
admitted at trial.
In addition to Nacchio, the firm is representing Steven
Schulman, a partner at Milberg Weiss Bershad & Schulman, who
is charged with conspiring to provide kickbacks to clients.
The law firm is known for filing class-action lawsuits
Stern also has been in the news for his work as an appointed
federal monitor investigating the finances of the University
of Dentistry and Medicine of New Jersey. The school
allegedly engaged in a Medicare and Medicaid kickback scheme
that padded cardiologists' compensation.
In November, Stern issued a blistering report that accused
the university's interim president of trying to conceal
information about the violations. The school responded that
it was "dismayed" by Stern's "assertion that we had not been
in compliance relative to this issue."
Stern was criticized for billing the state $5.8 million,
more than the $4.9 million lost through the alleged fraud.
But U.S. Attorney for New Jersey Christopher Christie came
to Stern's defense, saying that Stern's law firm accounted
for only $1.3 million of the charges, with the remaining for
accountants and others.
The right pedigree?
It's unclear whether Stern's background as a prosecutor and
federal judge will be an advantage in the Nacchio case.
Nottingham, known for keeping a tight control in the
courtroom and the only Colorado federal judge to wear a blue
rather than black robe, has been tough and brusque with both
"I don't think Nottingham will be impressed or intimidated
by the (former federal judge) credential," said Bill Leone,
Colorado's former U.S. attorney who led the Nacchio
But his experience should be an asset, even if he decides to
share the stage with some of his younger colleagues. And
Coghill said he doesn't think age will be a factor in what
is scheduled to be an arduous 30-day trial.
"By the time you get to be 70 (and after being beaten up a
number of times), you should be really good at this,"
Some wonder whether Stern will be seen by a jury as an East
Coast lawyer. At times, he can be indirect and subtle in
"I think Western juries like directness, they like
sincerity, and they like competence," Leone said. "Those
are the three attributes that a successful lawyer will have
Said Coghill: "I think a good trial lawyer can try a case
anywhere and communicate with anybody. Those are the
all-stars; the others bring their baggage."
A look back at Stern's
"Crime is the most flourishing and lucrative business in
America. . . . I speak now not only of the crime in the
streets, the burglaries and the robberies, which represent
tens of billions of dollars each year; I speak of the crime
which we call 'white collar' -- the crimes committed by the
advantaged, not the disadvantaged; the crimes committed
with pen and pencil, not with gun or 'jimmy'; under the
bright lights of the executive offices, not by stealth in
Herbert Stern, from his discussion of prosecutorial
philosophy in the 1973 book
Tiger in the Court,
by Paul Hoffman
Herbert J. Stern at a
• Age: 70
Hobart College, bachelor's degree; University of Chicago Law
highlights: Assistant district attorney, New York,
1962-65; trial attorney in Justice Department's organized
crime and racketeering section, 1965-69; U.S. attorney for
New Jersey, 1971-73 after serving as the chief assistant;
federal district judge, 1974-87; partner of Stern &
Writing books. Wrote a five-volume series called
Trying Cases to Win
and wrote the book
Judgment in Berlin, about presiding over a
hijacking case in West Berlin in 1979. The latter was made
into a movie starring Martin Sheen. A book also has been
written about Stern:
Tiger in the Court, by Paul Hoffman, 1973.
Married, four children.
smithje@RockyMountainNews.com or 303-954-5155