Overview: Day 4 of the Nacchio Trial

On Thursday (the trial is not in session on Friday), Cliff Stricklin, lead counsel for the government, made his first significant appearance and it is easy to see why he is heading this team of lawyers. In his examination of a former Qwest director (Craig Slater), his performance was direct and clear and reflected a high degree of preparation. There were no gaps or fumbling for exhibits; he is comfortable with the relevant technology. He handled objections in a fluid manner, not losing his place or train of thought, sometimes with humor. There were no testy interactions with Judge Nottingham.

The defense had a harder time of things. John Richilano resumed his cross examination of Leo Wolfe, the head of Investor Relations. One of the most damaging pieces of information concerns Wolfe's trading history. He netted over $600,000 at the same time Nacchio was alleged to be engaging in insider trading (as well as having netted a million dollars the year before). The cross, however, had a hard time hammering this home in part because Richilano both Thursday and Wednesday tried to use a demonstrative exhibit showing some type of trading history. In each case, objections were raised (apparently for not showing all of the underlying material to the prosecution). On Wednesday, for example, Richilano was not allowed to present the exhibit.

Stern also made his first appearance since the opening and had a tough time of things. He is less crisp and more folksy, pacing side to side (a constant squeaky sound from the floor audible to the audience). More so than Stricklin, he elevates his voice and occasionally strikes the podium for emphasis. He is less fluid with the technology, at one point having to rely on the government to put exhibits up on the computer screen. His questioning style generated a raft of objections, with Judge Nottingham instructing him not to ask compound questions (calling one of them a “gazillion-pound question”), to characterize the questions (saying things like “this is very important”), and to summarize information in the questions (“You can do that in your closing”). In one instance, Stern asked his witness if he could reappear in two weeks, with Judge Nottingham clearly angry, stating that “I don’t care to hear any more of this”. The constant objections and back and forth with the judge broke the flow of his questioning, making it less effective.

The defense also found itself on the losing end of a lecture about expert witness disclosure (it looks like they are talking about Daniel Fischel, from the University of Chicago). The judge chastised the defense for inadequate disclosure. Judge Nottingham indicated he had ruled on a government motion apparently insisting on more disclosure without even waiting for a defense reply. As he said, in open court, “It wasn’t even close.” Later, at the end of the day, the judge described himself as “flabbergasted” at the disclosure.

Making their first significant appearance in open court, Kevin Traskos and Colleen Conry examined witnesses for the government and Marci Gilligan (a partner in Richilano's firm, Richilano and Gilligan, in Denver) and Mark Rufolo (an attorney from Stern's firm Stern & Kilkullen, in New Jersey) conducted the cross.  All performed well, although Gilligan at one point sharply cut off the statement of the matronly witness, Sally Anderson, a former employee of US West - Qwest for not giving a "yes" or "no" answer, something the jury may have viewed as harsh.  

We will post some primary materials over the next few days.  The postings about the trial will resume on Monday.