Read The Recorder‘s roundup of the stock-option backdating scandal. There won’t be a test later … but there might be a subpoena.
“The fact that they didn’t call him sends a strong signal that they didn’t think he was credible enough to put in front of a jury,” Topel said.
While the conspiracy acquittal was victory for the defense, on three fraud counts 11 of 12 jurors voted to convict � giving prosecutors an enticing incentive to bring a new trial.
The jury deliberated for six days before deciding that it was hopelessly stuck on the deadlocked counts, creating a source of intense stress for the lawyers.
They spent most of this week pacing the federal building halls, since Jenkins required them to stick around until a verdict was rendered.
“It doesn’t usually drag out that long, waiting for a verdict. That made it more exciting,” said Michael Shepard, a partner at Heller Ehrman and a lawyer for McCall who conducted cross examinations in the case.
He and the other defense lawyers said the victory was particularly gratifying because of the post-Enron shadow cast over corporate executives.
McCall, Wells said, “is the first CEO or chair of a major corporation to go to trial post Enron, post-WorldCom, and be acquitted.”
The McKesson case grew out of a $9 billion scheme to inflate software company HBOC’s profits by misstating contract terms to maintain the company’s value in preparation for the merger with pharmaceutical distributor McKesson.
Four top executives entered guilty pleas after the scheme was uncovered, and in 2003, their cooperation led to the indictments of Lapine and McCall.
A trial of former McKesson CFO Richard Hawkins brought an acquittal last year. In that bench trial, Jenkins found that a key cooperator, former company Vice President Albert Bergonzi, was not credible. Bergonzi also testified in the latest trial.
Former Latham & Watkins partner Timothy Crudo was the assistant U.S. attorney who led the prosecution. Another AUSA, Brian Stretch, also handled a sizable portion of the arguments.
After the case, Crudo referred requests for comment to office spokesman Luke Macaulay, who didn’t return calls or e-mails.
It’s not clear whether the government will seek a new trial, and Jenkins said that given the schedules of the various lawyers, there’ll be no new hearings until next year.
That’s fine with Wells, whose highest-profile client � former Bush administration official I. Lewis “Scooter” Libby � is getting ready for his own trial in Washington in connection with the highly publicized leak of a CIA agent’s identity.
“I am going to move out of this hotel and I’m going to move into another hotel,” Wells told Jenkins.
