This post is the last question from a series of seven questions from the Rocky Mountain for four contributors of the Nacchio trial blog. While the newspaper provided limited excerpts of the contributors' answers in the article entitled "DU students, professors weigh in on ex-CEO's trial “ on April 16th, the following responses represent the complete opinions to Question 7.
7. What would your verdict be?
Kevin O’Brien : The government has proven its case on all counts based upon the showing of bad intent in 2000 related to the backdating of his first trading plan or at least for the trades after Nacchio terminated his second trading plan in February of 2001. Nacchio had a choice to follow President Mohebbi’s example and not sell while possessing material nonpublic information. However, Nacchio’s hubris convinced him that he was bright enough to game the securities rules and avoid punishment for trades increasing his net worth by 100 million.
Vaughn Marshall : It all comes down to what the jury finds compelling. I do believe that the defense raised a reasonable doubt with the evidence they put on. The jury could, however, find Nacchio guilty after Stricklin did such a good job emphasizing the backdated sell order. As they say, the consummate lawyer’s answer is “it depends.” It’s also important to keep in mind that there was a fair amount of evidence the prosecution wasn’t allowed to introduce, such as Qwest’s earnings restatements.
John Holcomb : Mr. Stricklin erased any reasonable doubt in his closing argument, and the defense erred by failing to emphasize the meaning of reasonable doubt issue by issue. My verdict would be “guilty.” I can see a jury hedging on two of the 42 counts, those related to the growth shares as opposed to the stock options, but if we get a “not guilty” verdict, that would raise questions surrounding the internal dynamics of the jury. Of course, you can always get a wild card and a hung jury, but that would be most unfortunate. Judge Nottingham will hopefully do his best to avert that.
Armin Sarabi : I would have to give a two part response to this. Looking at this case from my perspective, I have little doubt that Mr. Nacchio knew what he was doing, or that he is smart enough to know how he can push the limits here without finding himself hemmed up in a criminal proceeding. In fact, I think Mr. Nacchio probably anticipated an investigation by the SEC, but believed he'd covered his tracks enough to avoid an indictment. On the other hand, if I was a member of the jury, I would most likely have voted "not guilty" but only because this is a criminal case, and the burden of proof for the Government is so high. In the end, I'm not sure the Government was able to piece together a solid case against Mr. Nacchio, and I the Defense was able to dismantle Prosecutions case just enough to create doubt. If I had to guess the outcome of this case, I would say Mr. Nacchio will either walk on a large majority of the counts, or the jury will not be able to come to a decision. It is important to remember that Mr. Nacchio is looking at 10 years for each count, so even if the jury found him guilty for just one of the forty two counts, he would spend a considerable amount of time in "Club Fed."