AUSWR
The Association of U S West Retirees
 

 

 

Nacchio 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 aggressive."

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 that?' "

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 the years.

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 go."

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 institute.

"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 story.

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 light.

One of the only formal statements he has issued in connection to the Nacchio case came last spring after USA Today 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 disputed.

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 ferocity."

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 know."

President Nixon appointed Stern to the federal bench in 1973.

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 career.

"I had never represented a private client," Stern said, "and I didn't want to end my legal career without doing that."

Jumping ship

He spurned an offer by a big New York law firm, instead joining a small New Jersey firm, now called Stern & Kilcullen.

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 defense matters.

"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 security defense.

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 against companies.

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 sides.

"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 investigation.

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," Coghill said.

Some wonder whether Stern will be seen by a jury as an East Coast lawyer.  At times, he can be indirect and subtle in his approach.

"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 to portray."

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 views

"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 the dark."

Herbert Stern, from his discussion of prosecutorial philosophy in the 1973 book Tiger in the Court, by Paul Hoffman

Herbert J. Stern at a glance

  Age:  70

  Residence:  New Jersey

  Education:  Hobart College, bachelor's degree; University of Chicago Law School

  Career 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 & Kilcullen, 1987-present

  Hobby:  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.

  Family:  Married, four children.

smithje@RockyMountainNews.com or 303-954-5155

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