When a newspaper features a juror interview after a high-profile trial, it's usually disappointing. A typical article uses a couple of quotes from the juror, and fills the rest of the column space with a review of who was suing whom for what.
When four jurors give separate interviews, though, and the resulting articles are even reasonably comprehensive, you end up with something useful. That's what happened after the Nacchio guilty verdict in Denver last week. Juror David McCanless talked to the Rocky Mountain News; Doug Stoneman talked to the Wall Street Journal; Terrell Dye gave one interview to the Denver Post, and Anna Garduno gave another. Some of the things that stand out when you line up all four articles:
1. Jurors need visuals so much they'll make their own. The Lewis Libby jury hung posters on the walls, each summarizing one witness's testimony and their reactions to it. The Nacchio jury used a time line instead:
The walls of the jury room behind the 10th-floor courtroom were covered with a 3-foot-wide band of paper. Notes written in black, yellow and red marker snaked across the paper, the products of a timeline that traced stock trades and earnings announcements.
Words in red symbolized something the jurors felt was suspicious, yellow pointed toward innocence, black was the color of raw information.
There was a lot of red, Garduno said.
2. Jurors don't want to believe they are crediting emotional testimony. Nacchio's defense team had two key pieces of emotional evidence, heavily stressed in opening. First, lead defense lawyer Herb Stern argued that Nacchio could not have received a key memo because "[h]e was in Appalachia with his now abbot of the Saint Benedictine order distributing food in hovels to underprivileged people." Second, Stern argued that Nacchio could have cashed out and abandoned Qwest altogether, but instead he stayed in part because his son tried to commit suicide. The abbot himself came to testify.
The jurors said neither point affected the verdict. "We certainly had to dismiss it," McCanless said. "At best it was ancillary." Stoneman echoed, “Sympathy and compassion aren’t supposed to be part of the decision,” he said. As to the Appalachian trip, Stoneman remembered a cynical point made by the prosecutors: “It might have carried more weight if he hadn’t brought a photographer with him.”
Similarly, the jurors themselves worked to minimize their own emotion. "I felt so bad for his wife and son, and I cried," Garduno said. But McCanless was among those to bring emotional jurors back: "I had just reminded a couple of other jurors that we didn't create this situation. He did."
3. Jurors look for clear ways to cut through complex evidence. After weeks of trial and days of deliberations, the Nacchio verdict came down to one date. The Garduno interview explained:
On the timeline jurors had written on the wall, one date stood out - April 24. It was the day Nacchio had told Wall Street he saw no reason to back away from double- digit growth projections. In the months preceding that day, his executives had warned him repeatedly that those numbers were unrealistic.
"I went in thinking he was innocent," Garduno said. But it was hard to escape the fact that Nacchio knew by the time he spoke in the April earnings call that Qwest was headed for trouble. Still, he sold his stock.
The verdict was based on that date, plain and simple: the jurors found Nacchio innocent of insider trading at all times before April 24, and guilty at all times after.
4. Being smart can hurt you. The defense painted a picture of Joe Nacchio as a highly competent chief executive who passionately believed in his company. His intelligence came through, and it hurt him. From the juror interviews:
- "We felt he had months of information," Dye said. "He had people telling him that those one-time sales were drying up. We felt in good conscience it wasn't possible that he didn't know, not a man of that intelligence. The fact is those one-timers were never divulged."
- "Mr. Nacchio is a very bright man," McCanless said. "At some point he had to get it. The man did not fall off a turnip wagon and land in the Qwest boardroom. He had to know he was committing a crime. He was too smart to not conceive of that."
- "[G]iven who he is and how competent he demonstrated himself to be,”Stoneman said, he had to be aware of the alleged insider information.
5. Trying cases is hard. I'm one of hundreds of lawyers who were taught by Herb Stern. He has no idea who I am, but I regularly use his lessons, and I remember them more clearly because of his passionate and compelling delivery. I remember being amazed at how he made trying cases sound easy. I winced, then, to read in Anna Garduno's interview:
"I think a lot of what he did was an act, but he was so fun to watch," Garduno said. He carried a tote bag labeled "Dad" and he would dig through it for evidence "for 10 minutes," she said. When he pulled out documents, his hair would be disheveled.
But she thought his opening statement and closing arguments rambled, and jurors had a hard time paying attention to them. "I had hoped for his sake that someone else would have done the closing argument, he went off in so many different directions," she said.
The Rocky Mountain Times separately wondered whether the 70-year-old Stern had lost his touch. I wasn't there, but what strikes me instead from the reporting is that trying cases is just hard, so hard that a very skilled teacher will struggle like the rest of us in a tough case.
6. Jurors care. As the verdict was read, the string of pre-April "not guilty" verdicts came first, and Nacchio thought he had won. Garduno described the moment: "You could see Mr. Nacchio smiling and his son and wife crying, and I felt horrible because they thought he was off the hook, and that was going to change," she said. In a moment out of "Rocky Mountain High," McCanless said he "closed his eyes, began his deep breathing exercises and 'went to my happy place.'" Only in Denver, I guess.
(Image by Stefan Powell at http://www.flickr.com/photos/duchamp/13777559/; license details there.)
