Friday, June 8, 2007

Nacchio Takes Another Shot at a Change of Venue

Former Qwest CEO Joseph Nacchio filed a motion for a new trial and a request that the venue be changed on the nineteen counts of insider trading on which he was convicted in April 2007.  The motion, available here through the Denver University Sturm School of Law's Corporate Governance Project, points to the prejudice from overly negative publicity in Denver before the trial.  The motion argues:

As a result of the unceasing publicity, much of the voir dire was devoted to individual questioning of the venire panel about their prior knowledge concerning the case. This revealed that, of the 44 individuals who were called into the jury box and questioned, an overwhelming majority of 32 jurors responded yes, that they had learned about the case from the media or other outside sources. The Court nevertheless denied the motion to dismiss for cause prospective jurors with prior knowledge, denied our renewed application for change of venue, completed voir dire and impaneled a jury. The result was that, among the 18 jurors and alternates who were ultimately impaneled, an even larger majority of 14 had prior knowledge of the case. The prejudicial publicity then continued unabated throughout the trial. 

Because the pervasive publicity was so intensely negative and long lasting, a new trial should be granted pursuant to Fed.R.Crim.P. 33, and a change of venue ordered pursuant to Fed.R.Crim.P. 21.

The memorandum goes on to cite two instances during the trial when strangers approached Nacchio and vilified him, one wishing he contracted cancer. 

U.S. District Judge Edward Nottingham denied Nacchio's motion for a change a venue before trial, and it is unlikely he will change his position now.  Federal Rule of Criminal Procedure 21 gives the trial judge considerable discretion in deciding on a change of venue, and moving the trial to a different location is a last resort, and rarely granted.  The fact that jurors have heard about the case from widespread publicity is not dispositive, so the numbers cited in Nacchio's memorandum are not sufficient in themselves.  Courts focus more on the nature of the publicity, and whether it is particularly gruesome or heavily biased, and that is unlikely to take place in a white collar crime case -- regardless of how one might describe a 90% decline in a stock's value, it's only money and not a murder.

Perhaps the most salient factor weighing against Nacchio on this issue is the fact that the jury acquitted him of twenty-three counts of insider trading, and it deliberated for a long period of time before returning its verdict.  The government will argue that this is hardly a jury overcome by emotional appeals against Nacchio, but rather one that set aside its prior knowledge and decided the case on the facts.  While prosecutors usually do not like to see an acquittal on a number of counts, this is one instance when the jury's decision in favor of the defendant likely provides support for the government's position as well.  Rather than a "rush to judgment" that would be the hallmark of a prejudiced jury, the verdict was a fairly balanced view of the facts.  In the end, Nacchio's motion is aimed more at the Tenth Circuit by making a record on the issue in the District Court, and I doubt his attorneys will pin much hope on a favorable outcome.  For additional discussion of Nacchio's motion and outstanding coverage of the trial, check out J. Robert Brown's Race to the Bottom blog (here). (ph)

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