Three Groups File Sup. Ct. Briefs in Support of Joe Nacchio

Three groups have now filed amicus briefs in the Supreme Court supporting former Qwest CEO Joe Nacchio's cert petition for review of his insider trading conviction.

Here is the brief of the National Association of Criminal Defense Lawyers (pdf). The issues alone tell you why Nacchio's conviction has ramifications for all defendants:

  • The Tenth Circuit’s Decision Effectively Eliminates Rule 16 And Forces Criminal Defendants To Comply With The Civil Expert Discovery Rules
  • The Tenth Circuit’s Decision Is Inconsistent With Criminal Defendants’ Constitutional Rights And The Integrity Of The Criminal Judicial Process
  • The Tenth Circuit’s Decision Makes It Less Likely That Juries Will Have Access To Essential Expert Opinion Testimony In Complex Criminal Cases

The other groups are the U.S. Chamber of Commerce and the Washington Legal Foundation.

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    basic fairness (none / 0) (#1)
    by txpublicdefender on Mon Apr 27, 2009 at 07:30:17 PM EST
    I don't know whether he is guilty or not, but he did not get a fair trial, and no matter how mad his employees and shareholders were about what they believe he did, that aint right.

    the NACDL's (none / 0) (#2)
    by Bemused on Tue Apr 28, 2009 at 09:03:05 AM EST
      focus on the exclusion of the expert testimony and the exclusions is in my opinion much stronger than the previously discussed issue of whether the information which Nacchio had by virtue of his position was material.

      It's a bit of an overstatement to suggest the result of the appeals court decision renders Rule 16 a dead letter and establish discovery rules equivalent to those in civil cases (for example, you get to depose experts, pose interrogatories  and request production of a vast array of documents  in civil cases  prior to trial), but the sanction of excluding expert testimony is a very severe one and in criminal cases there are heightened due process requirements.

       Exclusion should be a last resort and never imposed except after an exacting review of the degree and nature of the failure of compliance and a balancing against the prejudice to the defendant flowing from the exclusion of the relevant evidence.

      I haven't followed this case that closely, but I suspect the trial judge  was angry with the defense for getting too cute and attempting to thwart the government's ability to prepare cross examination and rebuttal. I don't know the degree to which that was justifierd, but even if it was, sanctins on the defense and counsel short of exclusion should be be considered and only where none of the other possible  sanctions are sufficient and the prejudice to the defendant is not outweighed by the need to compel compliance should the remedy of exclusion of testimony be ordered.


    Joe Nacchio... Joe Nacchio... (none / 0) (#3)
    by lambert on Tue Apr 28, 2009 at 09:14:45 AM EST
    Gee, wasn't he  the only telco executive to turn down Bush's request for warrantless surveillance? And then, for some mysterious reason, was prosecuted immediately afterwards....

    Of course, now that Obama granted retroactive immunity to the telcos and gutted the Fourth Amendment with FISA [cough] Reform, that's all blood under the bridge, and by all means let's look forward and not back, but still....