Defense did well in cross-examination
By Scott Robinson
Rocky Mluntain News
Friday, April 6, 2007
The billionaire and the abbot. The title of a new TV sitcom?
No, the first two witnesses called by the defense in the Joe
Nacchio trial, both of whom could pluck the heartstrings of
jurors while establishing significant facts.
Portraying Joe Nacchio not simply as a corporate
mover-and-shaker recruited by billionaire Phil Anschutz to head
up Qwest but also as a caring father and decent guy who gave of
his own time, passing out food to the poor in eastern Kentucky.
In criminal cases the defense witness list may be dictated by
overall trial strategy, or it may be done defensively, in
response to the perceived strength or weakness of the
So what of the government's case?
Underwhelming is the single word that first comes to mind, but
perhaps unfairly so.
The prosecution put on a workmanlike, meticulous and
well-organized case but was hobbled by the dry nature of the
testimony, the personalities of available witnesses and
limitations placed on its evidence by Judge Edward Nottingham's
Prosecutors had the unenviable job of starting the trial with a
crash course in Stock Market and Corporate Life 101. Not a lot
of excitement there.
And the government could do little to alter the personalities of
key witnesses, from the quiet former Qwest President Afshin
Mohebbi and the understated CFO Robin Szeliga to the overeager
stock analyst Drake Johnstone.
Finally, the narrowness of the indictment, limited to stock
trading from January through May 2001, without accompanying
allegations of accounting fraud, led to court rulings excluding
evidence which surely would have helped the prosecution.
Evidence which included a $90 million asset transfer from
Nacchio to his wife in February 2002, the extent to which Qwest
stock eventually plummeted and Qwest's 2003 restatement, a
retroactive $2 billion-plus downward revision of revenues
between 2000 and 2002.
The indictment let prosecutors keep the case simple, but it also
paved the way for successful defense objections to the admission
of almost everything that occurred after May 2001.
As things stand, through defense cross-examination of
prosecution witnesses, the jury has already learned:
• That Nacchio had to exercise his stock options or lose
• That advisers urged him to sell Qwest stock to
• That in January 2001, Nacchio had a perfect excuse to
bail on Qwest and sell all his stock, if he truly believed the
company was in financial trouble, because his son had been
hospitalized after a suicide attempt.
• That the company had met its publicly announced
revenue targets for 17 straight quarters until the third quarter
• That the high revenue projections that numerous
employees had warned Nacchio could not be met were not the
public guidance figures but rather were "internal stretch
budgets" designed to motivate personnel.
• That in ignoring the discouraging words of others,
Nacchio knew what they did not: Qwest was negotiating for huge
top-secret government contracts which would more than make up
for dwindling one-time capacity sales and swaps.
Having accomplished so much during the government's case, it
only makes sense for the defense to present a streamlined case,
one involuntarily made even more aerodynamic by Nottingham's
rulings excluding much if not all of the testimony of "super
witness" professor David Fischel.
Barring the unexpected, Nacchio may choose not to take the stand
in his own defense, thus eliminating even the possibility of
high drama in the case.
That is, unless ego or worry about the verdict lead him to
insist on testifying.
Then and only then will the fireworks truly begin.
Scott Robinson is a Denver trial lawyer specializing in
personal injury and criminal defense.