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Chicago web weaves through Nacchio appeal

Judge, witness, defense attorney tied to law school

By Jeff Smith, Rocky Mountain News (Contact)

Published December 15, 2007 at 12:05 a.m.

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Call it the University of Chicago Law School connection.

Two key participants in the hearing Tuesday of former Qwest CEO Joe Nacchio have that prestigious law school in common - Appellate Judge Michael McConnell and Nacchio's appellate attorney Maureen Mahoney.

So does Nacchio witness Daniel Fischel, whose expert testimony was excluded at trial and now is at the center of a key appellate issue.

McConnell and Mahoney overlapped as University of Chicago Law School students in the late 1970s, and there was speculation both in 2005 both would be on the short list of potential U.S. Supreme Court nominees.

McConnell and Fischel overlapped as University of Chicago Law School professors, both routinely receiving $30,000 research grants from the Lynde and Harry Bradley Foundation of Milwaukee, a foundation seen by critics as a champion of unbridled capitalism.

The University of Chicago Law School connection doesn't end with McConnell and the Nacchio team, however. U.S. Attorney for Colorado Troy Eid also received his law degree from the University of Chicago and took classes from McConnell.

The connections have some concerned, in part because of the importance of the appeal panel's ruling concerning Fischel.

Fischel had planned to testify at Nacchio's insider-trading trial that disclosures of Qwest's fiber-optic capacity swap revenue wouldn't have had a major impact on the company's stock prices. That would have rebutted testimony by two analysts that the revenue numbers were material and should have been disclosed.

Federal Judge Edward Nottingham excluded Fischel as an expert witness, ruling the defense had failed to provide information about the testimony on a timely basis and didn't provide Fischel's methodology.

Despite the Chicago connection, it's unclear whether McConnell, one of three judges who will rule on Nacchio's appeal, has had close ties to Mahoney or Fischel.

Ray Gifford, former Colorado Public Utilities Commission chairman and a Denver attorney, had both McConnell and Fischel as professors when he attended the University of Chicago Law School.

Gifford noted McConnell's main scholarly interest has been First Amendment issues, while Fischel, now teaching at Northwestern University Law School, had a corporate law and economics emphasis.

"So, their respective scholarly interests were in quite different areas," Gifford said. "McConnell certainly knows the Chicago focus on law and economics but would never been deemed, I think, as a 'law and economics-school scholar.' "

Gifford, who is friends with McConnell, added that McConnell is a "very sharp, deliberate, thoughtful and humble" judge.

Other attorneys who have seen McConnell in practice also describe him as having a sharp legal mind, reserved yet actively involved, and an independent thinker.

That could cut either way, but they said McConnell wouldn't hesitate to overturn Nacchio's conviction if he believed there were legal grounds to do so.

smithje@RockyMountainNews.com or 303-954-5155