Nacchio's Supreme Court petition not necessarily a reach
By Al Lewis, Dow Jones Newswires
Wednesday, March 25, 2009
Former Qwest Communications International Inc. CEO Joe Nacchio
took a lot of abuse when he was on trial in
in 2007 on multiple insider-trading counts.
trial lawyer Maureen Mahoney painted the portrait in a petition
to the U.S. Supreme Court filed Friday.
"He was accosted on the streets, depicted by the Denver Post
alongside North Korean dictator Kim Jong Il, and even the trial
judge "s(aw) no reason why this man who grew up, the son of
Italian immigrants ... in New Jersey and New York, should ever
have come out here to Colorado," she wrote.
All of this is true. But let me explain, since I sat through
Nacchio's trial and was responsible for that Kim Jong Il thing.
are generally not this hostile unless they lose their retirement
savings, or their jobs, and believe a single individual is to
Five years before Nacchio got this rap, he had an office on the
52nd floor of the
Qwest Tower, where he bossed people around and
boasted incessantly about the company's growth prospects until
it quite suddenly shrank.
Then, during his trial, Nacchio strolled past this tower.
Naturally, some folks recognized him, so they flipped him the
bird, and screamed an obscenity or two.
This is something they can brag about for the rest of their
under-funded lives - and it was much more fun than just ranting
on a blog.
A reader sent me an email that I posted on my own blog on Feb.
27, 2007. (The blog was on the Web site of The Denver Post,
where I worked until joining Dow Jones Newswires in July.)
"With sunglasses on, Joseph Nacchio is clearly indistinguishable
from Kim Jong Il," it read.
I didn't know if this was really true, so in the interest of
research, I pulled a photo of Nacchio and juxtaposed it to the
"Axis of Evil" ruler.
The big, black hair, the dark sunglasses and the similar angle
of the cameras in both shots made for a pretty good gag - and,
to be clear, this was only in my wacky blog, not the newspaper
(Sorry, Joe. I was having fun at your expense. And to set the
record straight: You are much more dignified and handsome than
that nuclear-armed punk.)
I later became the only columnist to write that the Feds didn't
prove their case against Nacchio. As much as it disappointed me
to do so, here's what I wrote in The Denver Post on April 5,
2007 after the prosecution rested:
"Prosecutors may have shown the jury that Nacchio was a hype
artist, a stock dumper and an arrogant CEO. But they have not
shown whether Nacchio had criminal intent when he sold his
Jurors convicted him anyway. An appellate court overturned the
conviction in March 2008. Then in February, a broader panel of
the same appellate court overturned the overturning in an
unusual proceeding known as an "en banc" hearing. And now
Mahoney is trying to grab the attention of the Supreme Court.
Mahoney wrote in her petition that Nacchio is the only executive
ever charged with insider trading based upon financial
projections that didn't get met. She also challenged the
definition of "materiality" in jury instructions, the exclusion
of expert testimony and an "ethnic bias" against Nacchio.
Nacchio was supposed to report to prison on Monday, but earlier
this month, Mahoney asked U.S. District Judge Marcia Krieger to
delay his six-year stay because a doctor had found something on
his leg that was not a shackle.
A biopsy later determined it wasn't cancerous. But Krieger
delayed Nacchio's scheduled arrival at the Schuylkill Federal
Correctional Institution in Minersville, Pa.,
pending a possible Supreme Court review. This leaves Nacchio
free until at least June.
"Nacchio's lawyer is one of the best Supreme Court advocates
there is," said Carl Tobias, a law professor at the
of Richmond in Virginia. "But getting the Supreme Court to
listen is always a long shot."
Mahoney got a 2002 conviction against Enron's accounting firm
Arthur Andersen overturned at the Supreme Court in 2005. But our
highest court is swamped with about 8,000 petitions and writes
only about 100 opinions a year, Tobias said.
Jay Brown, a law professor at the
who has painstakingly followed the Nacchio case, said parts of
Mahoney's petition smack of reaching. He said he even found
arguments where he believes she overstated applicable laws.
"Those statements suggest to me that the defendants know their
case for acceptance by the Supreme Court is weak," he said.
It's not a reach, however, to point out that the federal judge
who tried Nacchio, Edward Nottingham, said a lot of bizarre
things in court, including a few lines that support Mahoney's
claim of an "ethnic bias."
Nottingham not only made note of Nacchio's
Italian heritage, but also complained in open court that he had
to recess an hour early for Passover, just so Nacchio's lawyers
could "go eat gefilte fish."
I can't explain those remarks. All I can do is point out that
had to step down after presiding over the biggest case of his
career amid allegations that he viewed pornography on the job
and frequented prostitutes.
What all this has to do with whether Nacchio got a fair trial
seems ancillary to some more compelling points Mahoney has made.
Still, I think it will be interesting reading for Italians and
Jews who happen to be on the Supreme Court.
Al Lewis: 201-938-5266 or