Milstead: Stern's bumbling manner didn't help case

Saturday, April 21, 2007

The whispers started early about Herbert Stern's performance - the meandering opening and closing statements, the trouble introducing exhibits to the jury, the frequent apologies for being unable to hear.

It was daily chatter among the press corps covering the trial. Was Stern losing it? Why was the 70-year-old behaving this way?

Was it a brilliant plan to lower expectations and seem more human, therefore currying favor with the jury? Perhaps we weren't smart enough to understand the strategy?

Seems the jury didn't understand the strategy, either.

Juror Terrell Dye told my colleague James Paton that while prosecutors were "pretty well organized" and had "all their ducks in a row," the defense "was unorganized sometimes and kinda forgetful."

He didn't mention Stern by name. But the defense team used Stern much more heavily than the prosecution - which rotated opening and closing arguments and key witness examination - used any of its team. By contrast, Stern made both the opening and closing arguments and cross-examined Robin Szeliga and Afshin Mohebbi, perceived to be the top two government witnesses.

And periodically, he fumbled, mumbled and bumbled as if he were Columbo, the rumpled detective who always solved his cases because the people he questioned underestimated him.

Let's look at the first thing jurors heard April 11, as Stern resumed a closing argument that started the day before. As he began his oration, he realized he needed his glasses and kept interrupting the argument as he rummaged through his pockets.

"I believe that at the end of - excuse me, just a minute. I believe that at the end of yesterday we had been discussing the origin - one of these days I'll even be ready to proceed, sorry - the origin of the growth targets . . . which Mr. Nacchio and Qwest put forth in all of the publicly stated financial targets which are at issue . . ."

That wasn't the first or only example. Stern's cross-examinations of Szeliga and Mohebbi were both slowed to a snail's crawl as documents or other evidence didn't show up on the jury's screens, or weren't in the witnesses' binders. The problem never seemed to happen to the prosecution team.

Judge Edward Nottingham, who seemed to prize a prompt pace of proceedings, frequently lost his patience with Stern. Although the worst tongue-lashings occurred with the jury out of the courtroom, Nottingham engaged in enough Stern-bashing to cause the jury to wonder.

All this led observers outside the jury box to question Stern's efficacy. John Holcomb, a DU business professor, called Stern's closing "extended and rambling" and said he couldn't think of many tactical strengths in the entire defense case. "If they made a conscious choice to obfuscate the issues, then maybe they accomplished some of that," he said.

Interviews with jurors suggest that they carefully considered the evidence and only gave small consideration to the style and form of the attorneys.

And it seems that if Stern's manner was part of a grand plan on behalf of his client, it didn't do a whole lot of good.

Read David Milstead's "Out of Order" blog at RockyMountainNews.com.