Former Qwest chief executive Joe Nacchio took a lot of abuse when he was on trial in Denver in 2007 on multiple illegal-insider- trading counts.
Veteran trial lawyer Maureen Mahoney painted the portrait in a petition to the U.S. Supreme Court filed Friday.
“He was accosted on the streets, depicted by The Denver Post alongside North Korean dictator Kim Jong-Il, and even the trial judge “s(aw) no reason why this man who grew up the son of Italian immigrants . . . in New Jersey and New York, should ever have come out here to Colorado,” she wrote.
All of this is true. But let me explain, since I sat through Nacchio’s trial and was responsible for that Kim Jong-Il thing.
Denver denizens are generally not this hostile unless they lose their retirement savings, or their jobs, and believe a single individual is to blame.
A reader sent me an e-mail that I posted on my blog on Feb. 27, 2007. (The blog was on the website of The Denver Post, where I worked until joining Dow Jones Newswires.)
“With sunglasses on, Joseph Nacchio is clearly indistinguishable from Kim Jong-Il,” it read.
I didn’t know if this was true, so I pulled a photo of Nacchio and juxtaposed it with one of the “Axis of Evil” ruler. The big, black hair, the dark sunglasses and the similar angle of the cameras in both shots made for a pretty good gag — and, to be clear, this was only in my wacky blog, not the newspaper itself.
Jurors convicted Nacchio, but an appellate court overturned the conviction in March 2008. In February, a broader panel of the same appellate court overturned the overturning. And now Mahoney is trying to grab the attention of the Supreme Court.
Mahoney wrote in her petition that Nacchio is the only executive ever charged with illegal insider trading based upon financial projections that didn’t get met. She also challenged the definition of “materiality” in jury instructions, the exclusion of expert testimony and an “ethnic bias” against Nacchio.
Nacchio was to report to prison Monday, but U.S. District Judge Marcia Krieger delayed Nacchio’s arrival at Schuylkill Federal Correctional Institution in Minersville, Pa., pending a possible Supreme Court review.
Jay Brown, a University of Denver law professor, said parts of Mahoney’s petition smack of reaching. He said he even found arguments where he believes she overstated applicable laws.
It’s not a reach, however, to point out that the federal judge who tried Nacchio, Edward Nottingham, said a few things in court that support Mahoney’s claim of “ethnic bias.”
Nottingham not only made note of Nacchio’s Italian heritage, but complained that he had to recess early for Passover, just so Nacchio’s lawyers could “go eat gefilte fish.”
I can’t explain those remarks. All I can do is point out that Nottingham had to step down amid allegations that he viewed pornography on the job and frequented prostitutes.
What all this has to do with whether Nacchio got a fair trial seems ancillary to some more compelling points Mahoney has made. Still, I think it will be interesting reading for the Italians and Jews who happen to be on the Supreme Court.
Al Lewis: 201-938-5266 or al.lewis@dowjones.com
