On May 22, 2007 Judge Nottingham issued his order ultimately allowing the defense access to the questionnaires used by the court to begin the jury selection process. This order was in response to a motion on the part of the Nacchio defense team in what was the initial post trial posturing by following Mr. Nacchio’s conviction for insider trading earlier this year.
The defense argued that under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1867 (the Act), Mr. Nacchio was entitled to the questionnaires. The Nacchio defense team wanted to search for possible error in the way the Court “winnowed down” the 1000 member jury pool to a total 78 prospective jurors. The defense claimed that the questionnaires could provide not only information that would show some members of the 1000 member pool’s answers to the questions did not demonstrate “bias justifying automatic excusal” but also provide some insight into how the court chose the jury pool.
Judge Nottingham began his analysis by pointing to the two unusual challenges the Court faced in seating a jury; that of the “unusual length of the trial,” and “pre-trial publicity,” a lot of which the court stated was “unfavorable to the defendant.” The Court said it utilized the questionnaires as a way to address these two issues by eliminating those jurors “who had a present or past relationship to Qwest or who would claim undue hardship when informed in open court of the length of the trial.” Moreover, the Order stated, the defense was completely aware of the methodology of the Court in developing the questionnaires and its purposes, as the defense participated in the process in hearings that spanned several months in late 2006 and early 2007. Though ultimately the Court allowed the defense access to the questionnaires, it did so at its discretion and with some stipulations.