Joe Nacchio, the Press, and the Disclosure of Sidebars

Joe Nacchio has filed a motion for a new trial and change of venue.  A copy can be found at the DU Corporate Governance web site.  The thrust of the motion was that there had been prejudicial pretrial publicity that prevented a fair trial.  As the motion concludes:

• "Because pervasive prejudicial pre-trial publicity remained unceasing, because three quarters of the prospective jurors questioned -- and 78% of the jurors and alternates ultimately impaneled -- had heard about the case from media or other outside sources -- all of which were overwhelmingly hostile to the defense -- because anyone who had read, seen or heard about this case, as a matter of simple truth, had to have been exposed to inflammatory and prejudicial material about the Defendant, the interest of justice require a new trial and the grant of a change of venue."

The motion also notes that the "prejudicial publicity then continued unabated throughout the trial." 

We offer no opinion on the issue of pretrial publicity.  Publicity during the trial, however, warrants a comment.  The level of information about this trial on an ongoing basis was extraordinary.  In part this arose from the degree of press coverage, which included the local papers and a number of national publications (someone from Bloomberg was almost always, if not always, at the trial and writing dispatches).  Blogs were ever present.  In addition to the two major newspapers and our very own Race to the Bottom, the Wall Street Journal Blog provided some coverage, as did 5280, a monthly magazine in Denver. 

But most interestingly was the availability of confidential information on an almost real time basis.  At the end of each day, a transcript of the proceedings became available for purchase.  My recollection is that a transcript cost $2.25 a page.  As a result, many web sites included various portions of the trial, with openings and closings particularly popular.  Some of them are posted on the DU Corporate Governance web site.  The transcripts, however, picked up not only the material presented in open court, but also the sidebars.  Thus, confidential conversations between the judge and the lawyers was available by the end of the day.  Some of the information in the sidebars quickly found their way into the public domain.   

An example?  The trial included the issue of whether Nacchio backdated certain instructions given in connection with shares sold in early January.  A possible witness in the matter was a lawyer at Qwest who apparently had some involvement in the paper work.  A sidebar discussion about calling the witness suggested that he would only testify if he received immunity.   The contents of the sidebar were reported in the local newspaper, with the article also discussing the possibility that he would take the 5th.

The jury in this case was not sequestered.  Each day the judge admonished the jury not to read about the trial, talk to anyone about the trial, or otherwise discuss the matter.  When one juror had a brief exchange with someone in the elevator, the juror was questioned in chambers (the questioning, by the way, is likely in the transcript).  There is no reason to believe that the jurors did anything but follow the judge's instructions. 

Nonetheless, the availability of this type of information raises significant issues.  It is one thing to have a juror accidentally exposed to the relatively cursory coverage in the newspaper, on the radio or on the television.  But a juror exposed (deliberately or accidentally) to information about a sidebar, information deliberately kept from the jury, may be a bell much harder to unring.  In big trials in the future, ones that will involve saturation coverage and access to daily transcripts, sequestering the jury, despite the hardship, may be the most appropriate approach.