Tuesday morning, the Judge and attorneys will confer about jury instructions in Joseph Nacchio’s trial. The trial itself will resume at 1:00 pm with the recall of witness David Weinstein to the stand. Contrary to some published reports, the Government did not score a win by Judge Nottingham’s ruling that the Government could reopen its case to recall Weinstein. That was a win to the defense, which had challenged a ruling by the judge prohibiting them from questioning Weinstein about a memo he had written to Qwest counsel Yash Rama recounting a telephone conversation. The memo has to do with whether Nacchio was using the past or present tense when discussing his irrevocable decision to sell his stock in December, 2000. The memo says in part (obtained from court’s docket)

I asked Yosh (sic) if there was a problem from an insider trading perspective and Yosh (sic) told me there was not. Joe previously made an irrevocable election to sell the shares during the last window period and according to their legal counsel, this qualifies for an exemption for the insider trading rules.

Yash Rama was not called as a witness at the trial. The Judge initially granted the Government’s request to exclude the document on hearsay grounds and on grounds that its use was an impermissible way of refreshing Weinstein’s recollection. After the defense filed a motion to strike Weinstein’s testimony or for a mistrial, saying the Government impermissibly used another Weinstein memo from the time period to inaccurately portray Nacchio as speaking in the present rather than past tense, which was in conflict with his testimony on the witness stand, the Judge reconsidered his refusal, and decided the defense did have a right to introduce the excluded memo. The defense argued:

We respectfully submit that the Court erred in not admitting Ex. A-1031 [the memo] under Fed. R. Evid. 803(6), and in not allowing the defense to cross examine the witness using the witness’s own memo either to refresh his recollection, to rehabilitate his sworn testimony that Mr. Nacchio used the past tense, or to impeach the government’s exhibit in its use of the present tense. It was also error to exalt procedural rules of evidence over the defendant’s confrontation and due process rights under the Sixth Amendment.

After the Judge agreed to allow the memo into evidence, the issue became, how does Weinstein, already excused, get back on the stand? Should the defense call him as their witness? The defense didn’t think it should have to call Weinstein, a Government witness who would be hostile, in its case. It argued in a pleading:

The defense should not be forced to call a government witness, on whose cross examination the evidence (Ex. A-1031) should have been admitted in the first place, as a condition for the admission of exculpatory evidence that the Court has already ruled satisfies the trustworthiness requirements of Rule 807. ….To require the defense to present a hostile witness not of its choosing, in order to admit evidence which should have been permitted on cross examination, is impermissibly burdensome of Mr. Nacchio’s Sixth Amendment rights to confrontation and a fair trial.

So, Nottingham said the Government can call Weinstein by re-opening its case and both sides can then question him. From the Trial Minutes on the docket sheet:

Defendant’s Motion to Reconsider Order Requiring the Defense to Call a Witness in Order for Exhibit A1031 to be Admissible, and for the Admission of the Exhibit Without Being Forced to Call a Hostile Witness (#349, filed April 8, 2007) is GRANTED in part and DENIED in part. Government’s Exhibit 209 shall be remarked as Defendant’s Exhibit A1031 and shall be admitted when introduced with regard to witness David Weinstein; Defendant’s Exhibit A1031 shall be remarked as A1031a.

Enough of the technical stuff. Let’s talk about closing arguments. According to the Denver Post, the Government will split its closings between Collen Conry and Cliff Stricklin. I think that’s a mistake. First off, James Hearty gave a very good opening argument for the Government. It’s good practice to have the attorney who gives the opening also give the closing. In opening, the attorney tells the jury what evidence it will hear. He makes promises to the jury. In closing, he reminds the jury of what he promised and how he kept the promise. There’s a continuity there. To bring in another prosecutor, one who played a minor, and in my view, not particularly effective role, to close is a mistake. The Government gets to go twice in closing arguments because it has the burden of proof. The defense is definitely at a disadvantage in closing, because it can’t rebut what the clean-up prosecutor, who goes second, tells the jury. Cliff Stricklin will be the clean-up prosecutor. I’m surprised Conry is giving the first closing. She’s from Main Justice in Washington and perhaps she wants her share of the glory if Nacchio is convicted. But, she is a by-the-book prosecutor, and one I found to be boring in her witness examinations. The biggest disappointment for the Government in the trial was Robin Szeliga. Questioned by Conry, Szeliga spoke in a monitone and her testimony seemed scripted. There was not an ounce of spontaneity to it. It was widely anticipated that Szeliga would be the Government’s star witness. Not only did she not produce a smoking gun, she didn’t hurt Joe Nacchio. Shorter version: Szeliga was a snooze. I’m not saying the case is a slam-dunk for Nacchio. Herb Stern has had so many dressings-down by Judge Nottingham that his credibilty may be diminished in the eyes of the jury. But, the prosecution has the burden of proving its case beyond a reasonable doubt. All Nacchio has to do is raise reasonable doubt. If the jury believes he could have sold his stock because his options were expiring and Qwest refused to grant him an extension, if they believe he may have sold his stock because his accountants told him to diversify, or if for any reason they aren’t sure he sold his stock with an intent to act on non-public information in his possession, they have to acquit. A criminal trial isn’t like a civil trial. It’s not a question of who you believe more. If the arguments of both sides are plausible, then there’s a reasonable doubt and the jury must acquit. Joe Nacchio has been a likeable defendant during this trial. He hasn’t been hyper, furiously scribbling notes on a legal pad. He hasn’t repeatedly tapped his lawyers on the shoulder to talk to them. He’s exuded confidence in their handling of the case. I think that will go a long way. As for him not taking the stand, I think it was the right call. As Herb Stern said, “If it’s not broke, don’t fix it.” In sum, the Government needs a one-two punch in closing, and I wonder whether Conry-Stricklin is the combination to pull it.