Denver billionaire Phil Anschutz is publicity shy. He arrived at the courthouse just before 7 am today, accompanied by three lawyers and a paralegal. He was the first defense witness for Joe Nacchio. He testified for ten minutes on direct examination. He said that in January, 2001 Nacchio uncharacteristically asked for a personal meeting with him, during which he cried and said he wanted to resign because his son had attempted suicide. This matches what the defense told the jury it would hear in opening statements. His cross-examination ended at 10:35 a.m. The defense is expected to decide today whether Nacchio should testify. Lawyers interviewed by Jeff Smith of the Rocky Mountain News (myself included) note it's a decision fraught with peril. Denver Post business columnist Al Lewis says he told Nacchio yesterday he shouldn't take the stand because things were going well for him. Lewis' view of the prosecution's case:
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 shares. It would be nice if someone went to prison for the Qwest mess. But did Nacchio intend to trade illegally? What was going on in his mind when he sold his stock? Didn't anyone hear him brag about his alleged pump- and-dump scheme? The prosecution fell short of answering these very crucial but very difficult questions. Now, they can only hope the jury will look at the piles of money Nacchio made and conclude that building this fortune was his motive.
Judge Nottingham has struck Qwest investor Sally Anderson's testimony. Update: Court is adjourned until Monday. Nacchio must decide by Saturday whether to take the stand in his own defense. Defense attorney Herb Stern says he doesn't expect to use the "classified security" defense.
If the jury recessed at noon, it likely means the Defense is done -- unless they call Nacchio. Otherwise the Judge would have told the defense to call another witness. He's not one to waste time. As promised in opening argument, the defense called a Catholic abbot to the stand to tell the jury about Nacchio's trip to Kentucky to help feed the poor. The ostensible purpose was to show that Nacchio may not have received the letter Afshin Mojebbi left on his chair. But, a side purpose likely was to show Nacchio as a charitable guy. It seems both purposes may have been muted by Prosecutor Cliff Stricklin's cross-examination.
Abbot Giles Hayes described Joe Nacchio going on a mission to eastern Kentucky in December 2000 to distribute gifts and food to the poor.....Under cross examination, lead prosecutor Cliff Stricklin was able to note that Nacchio took a satellite phone with him to Kentucky to stay in touch with Qwest, and was within two hours of an airport if needed to leave for business reasons. Hayes also confirmed this was the first time Nacchio had gone on such a mission. Stricklin noted Nacchio brought along a professional photographer for publicity, and that Nacchio talked about the trip with The Wall Street Journal.
Update: (Saturday, 4/7): Upon reading the Court's docket sheet, there are two more witnesses who will testify. The minutes of Thursday's trial proceedings include this notation by Judge Nottingham:
Exhibit A1031 shall be admitted into evidence before the jury, and David Weinstein shall beexamined by both parties as to said exhibit; 334 United States Motion to Exclude Testimony by Daniel Fischel is GRANTED; Court advises counsel to resolve matters discussed in open court and be ready to proceed on Monday;
In reading the pleadings, what happened is this. The defense moved to strike the testimony of David Weinstein and for a mistrial. It objected to the Court's exclusion of a Weinstein memo it wanted to use to in questioning Weinstein. The Court denied the motion to strike and the request for a mistrial, but agreed the memo should have been admitted and will allow Weinstein to retake the stand and be questioned by both parties on Monday. Also, the defense will be calling Daniel Fischel to testify about the summarization charts. The Court granted the Government's request to exclude his testimony on other issues, and the Government said it needed more time to review the underlying documents. The defense then said it didn't have any other witnesses ready that day, so the Court sent the jury home. So, even if Nacchio doesn't testify, it appears there will be two more witnesses before closing arguments.