Colleen Conry for the Prosecution

This post focuses on the government’s opening, others will examine the opening of the defense.

Colleen Conry gave the closing. She did a superb job, tying together all of the many pieces to the case. She walked through the evidence chronologically, avoiding the confusion that might result from a temporal back and forth. She relied on a useful set of charts and slides (much better than those used in the government’s opening), adeptly illustrating what were sometimes complex points. At the end, she addressed a number of matters that would come up in the instructions to the jury, including the materiality of the information, Nacchio’s state of mind, and the non-public nature of the information.

Over and over, she reminded the jury that this was not a disclosure case, that “the choice to tell [the nonpublic information to the market] was his [Nacchio's] and his alone," but that as long as he didn’t, he couldn’t trade. Perhaps unfortunately, she reduced it down to a ditty: “If you don’t tell, you can’t sell.”

As for the motive: “He knew he had to get out in the first two quarters.” He knew that the “house of cards” that he built was about to come down. And, with the $100 million in his pocket, she reminded the jury of what Nacchio told an analyst in early 2002: “you never should have believed me in the first place”

Conry tried to put an end to the argument, often used effectively by the defense, that the complaints from inside Qwest by various officers and division heads were about the internal targets and not the external guidance, calling it a “distraction,” and showing that the amount of “unlikely revenue” was more than enough to effect the external guidance. It was, however, too little too late.

With respect to the growth shares (sold in early January 2001), she invited the jury to listen carefully to the instructions by the judge because you’re not “going to hear an exception for growth shares”.  As for the allegations of backdating, she told the jury that the irrevocable instruction given by Nacchio wasn’t signed on November 3 (the date appearing on the document). “The reason you can know that. It wasn’t even in creation.” And why did Nacchio backdate? The “bad news” he received in December, particularly the “Mohebbi warnings,” a reference to two memos left on Nacchio’s chair by Mohebbi. With the information, “he’s got to jump in a time machine and go back to November 3.” She reminded the jury of the memorandum they had seen from David Weinstein, Nacchio’s financial advisor, earlier the same day, where he wrote: “Joe is signing an irrevocable election to sell the shares now [that is in December] and that is why he can sell the shares during a nonwindow period.” (emphasis added).

In addition to a forceful presentation, Conry made effective use of technology. Documents appeared on screens when needed, tapes played at appropriate volumes, excerpts from testimony were not only read orally but also displayed visually. The length of the closing was appropriate. Whatever the jury decides, they heard an effective presentation of the government’s side from Colleen Conry.

Comments

[APB]

I am glad to hear her closing went well. After hearing about the 'ditty' I was reminded of the OJ Simpson case ("if the glove don't fit, you must acquit") and felt sick that the govt would come up with a catchphrase like that. Reading other reports of the closing made it seem that Conry placed a great deal of emphasis on the catchphrase, but it sounds like she did a great job (and the catchphrase was minor).

Sorry I missed the arguments, but I had class ;).