Don't expect plea deal
By Al Lewis
Tuesday, March 18, 2008
Joe Nacchio is not going to plead guilty.
Mark these words. After his conviction was overturned
Monday, prosecutors will drag him to the negotiating table
before initiating a new trial.
Joe will just say no. Qwest is still paying for his legal
defense. And if that well runs dry, Joe will blow through
his entire fortune before saying the g-word.
"It's not over," Nacchio told me after his sentencing in July.
And guess what? It's not.
"We look forward to Joe Nacchio's ultimate and total
vindication," Nacchio's lawyer Herbert Stern said Monday.
It was easy to see this coming.
On Dec. 19, after hearing arguments before the appellate court,
I wrote: "They will overturn Nacchio's conviction 2-1,
with (Judge Jerome) Holmes dissenting. . . . They will send the
case back to the district court for retrial."
I also highlighted the arguments of concern to the appellate
Maureen Mahoney, Nacchio's appellate attorney, had argued that
Judge Edward Nottingham improperly excluded expert witness
testimony from Daniel Fischel, a Northwestern University law professor with a long
history of testifying in white-collar cases.
"Fischel would have told the court that Qwest's implosion was
due to broader risks to the
economy that the investing public already knew," I wrote.
"He also would have given the jury guidance on the
'materiality,' or relevance, of information Nacchio allegedly
used in making his stock trades."
This argument likely played well with appellate Judge Michael
McConnell. He's a
graduate. Fischel is a former
"Judge McConnell is a law and economics guy," said University of Denver
law professor Jay Brown. "He views this kind of evidence
as particularly appropriate in these securities cases."
Blame Nottingham for improperly
nixing it, or blame government prosecutors for arguing so hard
against hearing it.
What would it have hurt to listen to this professorial blowhard
for a few hours anyway?
Last year, I described Fischel as a "frumpy law professor with
pop-bottle glasses." I noted that he had testified in
support of savings-and-loan villain Charles Keating, junk-bond
king Michael Milken and goons in the Enron debacle. He's
an expert witness who will say anything for a fee.
Fischel's going rate is $1,000 an hour. He told the court
he would be paid $25,000 for the Nacchio trial. During the
testimony that Nottingham allowed Fischel to present, prosecutors got him
to admit that there was a typo in one of the charts he prepared
— charts he swore were totally accurate. How do you get
paid $25,000 and show up to court with a typo?
Now, though, it looks like Fischel was worth every penny since
Nacchio's case was overturned on the exclusion of his testimony.
One thing I didn't predict in my Dec. 19 column was that the
appellate court would take the case away from
This extraordinarily rare move exposes what
Nottingham's colleagues think of his courtroom
antics — which included bullying attorneys with harsh, sometimes
bawdy comments in this trial.
His colleagues put it more gently: "We have concluded that
it would be unreasonably difficult to expect this judge to retry
the case with a fresh mind."
It is going to be unreasonably difficult to retry this case.
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