General Thoughts on the Closing Arguments

Since my blogsphere colleagues have delivered in an in-depth analysis of yesterday's closing arguments, I thought I would take a different approach and share my general thoughts instead.  As a disclaimer, I will ask our readers to remember that I am only a law student and do not attempt to give you legal analysis by any stretch.  Here, I am only sharing my thoughts from the closing arguments as I though you might find them interesting.

To begin with, I had assumed that the Government would select Mr. Sricklin to deliver the closing yesterday.  To my surprise, it was Colleen Conry who stood at the podium to wrap up the Prosecution's case.  It didn't take long, however, for me to realize why Conry, and not Stricklin, was standing at the podium.  She had a certain calming and charismatic tone to her delivery that, in all honesty, invoked the sense that I was not listening to "the man" trying to go after an "average Joe" (pun intended) in a criminal case.  Rather, I felt as though I was listening to my favorite school teacher explain to me why Mr. Nacchio did a very bad thing.

Perhaps it's a coincidence that Conry is the only woman on the Government's panel, but I would venture to say if it were indeed a coincidence than it was a lucky break for the Government.  Notably, Conry's tone came off as slightly inquisitive, yet informative.  Her speech was rather matter of fact when discussing Nacchio's trades (reminding the jury that there is no mistaking what Nacchio was up to), and in this way she did a good job of tying up loose ends and Government business left unfinished over the past few weeks.  Conry also kept the legal jargon to a minimum.  Unlike Stern's closing argument, Conry was able to effectively communicate her points to the jury without being condescending toward them (something Mr.Stern managed to do on several occasions).

As for Mr. Stern's closing: I thought he did as good a job as the Defense could have done in this situation (although I'm not sure others would agree with me on this).  I will admit that I thought Stern would be brief, keeping the attention span of the jury in mind.  However, Stern spoke for nearly an hour-and-half and asked Judge Nottingham to break until tomorrow morning when he could resume his closing.

During the course of this trial, Stern and his team have done their best to come off as defenders of the innocent.  While we all know Stern's team is raking in millions of dollars to defend Mr. Nacchio, one would not get that impression from the manner in which they dressed.  Their suits did not always seem as crisp and freshly pressed as one would expect from a high price attorney, and I didn't notice any markings from high-end labels on their attire.  All of this I think goes to the fact that the Defense did not want to give the impression that Joe Nacchio is a "rich boy" who stole from middleclass America.

The same approach was apparent during Stern's closing, although I'm not sure if it was as effective.  Stern came off as a bit arrogant and condescending at points, talking down to the jury as if they were a bunch of country folk who could not understand the level of sophistication required to follow the case.  While the Government used graphically enhanced and well designed charts on the court computer system, Mr. Stern stuck to the old methods of using cardboard charts on an easel (there were a couple of exceptions to this later in the day), which again created the impression that Stern didn't think the members of the jury were savvy enough for computer graphics (in all honesty though, it may have simply been because Mr. Stern was not savvy enough for such technology).

I will give Mr. Stern credit again for taking his best shot at defending Mr. Nacchio.  Even though the Government has the burden of proof, and a very tough burden at that, I have felt throughout the course of this trial that Nacchio knew exactly what he was doing the entire time.  However, Stern brought up two points that made me take a moment and re-evaluate my position.  First, Stern mentioned the a class of shares Nacchio owned, which were worth $28.5/share and would not expire for some time.  Stern pointed out that Nacchio never once sold any of those shares, but only the shares that were going to expire had they not been exercised.  Second, Stern mentioned the tax liability surrounding these shares.  Stern tried to make the point that if Nacchio had exercised but held the shares, he would have still owed the IRS millions in taxes, therefore Nacchio had no choice but to sell. 

Two good points that the Defense has hammered to death over the past few weeks.  However, there was a peculiar moment in the closing when Stern mentioned the fact that Nacchio could not have possibly known he was going to be in court several years later, and that one should not believe the argument that Nacchio planned out the sale of his shares so that later he could put on the tax liability and expiration defense.  To be honest Mr. Stern: Nacchio is perfectly smart enough to know what he was doing, and to know exactly how he has to do it in order to cover up his tracks.  This is why the Government has had such a difficult burden placed upon them.  The fact that Stern acknowledged this in his closing argument only confirms, for me, what I've suspected all along…