Sleepless Nights for Joe Nacchio Ahead

Judging from the media reactions to Thursday's oral argument in former Qwest CEO Joe Nacchio's insider trading case, held before 9 judges on the 10th Circuit Court of Appeals, Mr. Nacchio faces some sleepless nights ahead waiting for the final decision on whether he gets a new trial or goes directly to jail.

Rocky Mountain News reporter Jeff Smith, who has been writing on the case since the beginning and who attended yesterday's arguments reports it was all very technical and about "the rules." But the Judges seemed more interested in peppering Nacchio's lawyer with questions than it did the Government's counsel.


Two law professors who attended the hearing agreed with Smith in interviews with the Denver Post.

I watched interviews with two lawyer-observers on the evening news. Both said it didn't go well for Nacchio, that the Judges were tougher on his lawyer than the Government lawyer.

Denver lawyer Scott Robinson writes in the Rocky Mountain News that the oral arguments are not the bread and bones of an appeal, the pleadings are. Still, he asks:

Can the outcome be accurately predicted by the questions and comments of the judges? Not always, but here it looks as though the decision will not be unanimous, split either 5-4 or 6-3.

Checking the national news, Reuters reports:

U.S. appeals court judges sharply questioned a lawyer for former Qwest Communications International Inc Chief Executive Joseph Nacchio on Thursday during a hearing to determine if his 2007 conviction on insider trading charges should be reinstated.

During oral arguments in an appeal by prosecutors, six of the nine judges of the 10th U.S. Circuit Court of Appeals in Denver appeared to take issue with Nacchio attorney Maureen Mahoney's claim the former telecommunications CEO had an unfair trial because an expert witness vital to his defense was excluded.

The New York Times explains yesterday's proceedings this way:

The nine judges in attendance — three recused themselves because of conflicts — fired a near constant broadside of questions at both sides, with special emphasis on Ms. Mahoney.

Some judges appeared to feel strongly that it had been incumbent upon Mr. Nacchio’s lawyers to compel Judge Nottingham to allow Mr. Fischel to testify. “Your whole framework is that the court had an obligation to do something, when it was you and Mr. Nacchio who had an obligation to get the witness to the stand,” said Judge Jerome A. Holmes, addressing Ms. Mahoney.

The Times reports other judges seemed to favor Nacchio:

Other judges, however, clearly sided with Ms. Mahoney and wondered aloud whether Judge Nottingham’s decision to exclude Mr. Fischel’s testimony was too severe. “Isn’t the sanction over the top?” questioned Chief Justice Robert H. Henry. “Why is total exclusion what we should do here?”

Judge Michael W. McConnell added: “This suggests to me that the district judge has such a low opinion of economic expertise that he doesn’t think there should be such expertise at a trial like this.”

The issue to be decided, as I reported here and at greater length with legalese included here, is:

Whether the trial judge improperly excluded testimony from Nacchio's expert witness who would have disagreed with two Government experts on an issue that was central to Nacchio's guilt or innocence.

This is about fundamental fairness and affects a defendant’s ability to call witnesses on his behalf at trial , which is a central component of the Sixth Amendment right to put on a defense. In a friend of the court brief, the National Association of Criminal Defense Lawyers (NACDL) argues the trial judge made three key errors that resulted in a violation of Nacchio's constitutional right to put on his defense.

First, the District Court held that the Rule 16(b)(1)©summary of the defense expert’s opinion was insufficient because it did not establish that the expert was reliable, when in fact Rule 16(b)(1)© contains no such criterion.

Second, the District Court imposed a sanction without providing Defendant with any opportunity to be heard.

Compounding this error, the District Court proceeded to impose the harshest punishment available – total exclusion of the expert witness – when the governing authority reserves that sanction for egregious cases in which a party is improperly gaming the system for strategic advantage.

Although a lot of rule numbers came up during Thursday's argument, Rule 16 is the key because that is the rule that lays out a defendant's disclosure obligations with respect to calling an expert witness at trial. Criminal Rule 16 says a defendant who intends to call an expert must provide the other side with a summary of the expert's testimony, the reasons and bases for his opinion and his qualifications. That's it. At that stage, the defendant in a criminal case is not required to demonstrate the expert's testimony is reliable or admissible under the rules of evidence. That burden comes later, after a challenge is made.

Judge Nottingham did not believe the defense supplied the bases or reasons for Fischel's opinions. At the government's request, he excluded Fischel from testifying, without providing an Nacchio an opportunity to demonstrate that his testimony was reliable and his methodology sound before making that decision.

Even if the 10th Circuit rules Judge Nottingham was correct and Nacchio did not comply with the criminal rule, it may consider whether the sanction of exclusion of the expert testimony was too severe.

It could take several months for the 10th circuit to issue its opinion. I normally don't read too much into the questioning at oral argument. As local attorney Scott Robinson said, it's the least important part of the appeal.

No matter which side wins, this case isn't over. You can bet the losing side will petition the U.S. Supreme Court to review it. And should it be Nacchio who wins, he likely will have to stand trial again, an emotional double punishment in itself.

[Cross-posted at 5280.com]

< Friday Open Thread | Waas: Alberto Gonzales Turns on Bush >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Indeed... (none / 0) (#1)
    by MileHi Hawkeye on Fri Sep 26, 2008 at 01:44:49 PM EST
    ...everything I've been reading in the local press doesn't paint too rosy of a picture for Joe's chances.  

    2 hours (none / 0) (#2)
    by Carolyn in Baltimore on Fri Sep 26, 2008 at 01:47:46 PM EST
    Jeralyn posted this almost 2 hours ago and there are no comments. We should care about this case. First, because this guy was railroaded. Right now they are just going over one issue from the trial - but the clincher is this:
    If Nacchio gets a new trial I think it is time for the greymail. Nacchio's stock price went down because he didn't get Fed'l contracts he expected after he denied warrantless wiretapping access to the Feds. This trial IMO is about the politicized DOJ and the ATT et al acquiescence to the demands of the spooks. The next jury would likely get to hear some of that.

    I'm not totally convinced... (none / 0) (#3)
    by MileHi Hawkeye on Fri Sep 26, 2008 at 02:53:06 PM EST
    ...that Joe is a saint in all of this.  I do admire Qwest's standing up to the Feds, but I think it goes deeper than that.  There seems to be an underlying current of personal greed on his part that has never sat right with a lot of people--especially those who worked for Qwest/Mountain Bell.

    Judge Nottingham doesn't strike me as someone would allow him to get railroaded either.  


    I wasn't aware that sainthood... (none / 0) (#5)
    by sj on Fri Sep 26, 2008 at 03:42:40 PM EST
    ...was a requirement for guilt/innocence determination.  And frankly, who gets to that level without some "underlying current of personal greed"?

    I don't believe... (none / 0) (#8)
    by MileHi Hawkeye on Fri Sep 26, 2008 at 08:49:29 PM EST
    ...I said or implied that it was.  

    I agree that it's important (none / 0) (#4)
    by sj on Fri Sep 26, 2008 at 03:38:40 PM EST
    I just don't know enough to comment on the legal issues.  I come here to learn about it/them.

    the sanction WAS excessive (none / 0) (#6)
    by txpublicdefender on Fri Sep 26, 2008 at 05:42:35 PM EST
    Even if the Court finds that it was the defense didn't meet their disclosure obligation under the rules, the complete exclusion of the central defense expert was reversible error, in my opinion.  A defendant has a constitutional right to present a defense and court rules cannot outweigh that right.  It does not appear that the judge even considered less severe sanctions.  Without some showing of intentional bad faith, outright exclusion of the witness was a clear abuse of discretion.

    procedural question (none / 0) (#7)
    by txpublicdefender on Fri Sep 26, 2008 at 05:47:27 PM EST
    Can someone remind me . . . What was the opinion of the panel--that the judge was wrong about the defense's obligation or that the judge was right but the sanction was too severe?  If it was the former, then it seems like the strong argument is that if a panel of federal appeals court judges did not believe that the defendant had an obligation to make the showing, then the sanction of outright exclusion was clearly too severe.  If the rule and/or law was so unclear that the appellate judges would have made the same mistake had they been trying the case, then how can the exclusion sanction be appropriate in light of the constitutional right to present a defense.