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It was one legal error, but just enough

Judge Nottingham's exclusion of defense witness proved crucial

By Jeff Smith, Rocky Mountain News (Contact)

Published March 18, 2008 at 12:05 a.m.

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In this artist's rendition, U.S. District Judge Edward Nottingham sentences Joe Nacchio to six years in prison.

Photo by Pat Lopez / Associated Press/2007

In this artist's rendition, U.S. District Judge Edward Nottingham sentences Joe Nacchio to six years in prison.

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The appellate panel Monday cited U.S. District Judge Edward Nottingham for just one mistake: the exclusion of a defense witness.

But that was enough to give convicted former Qwest CEO Joe Nacchio a new trial.

There was no mention of Nottingham's personal foibles, such as reported links to prostitutes, in the 60-page appellate brief.

There wasn't even a mention of Nottingham's moral critique of Nacchio's behavior during the July sentencing - though that might have been an unwritten reason for the ordering of a new district judge in the case.

Instead, Nottingham's error, according to the panel, came at the very end of last spring's insider-trading trial, when he abruptly cut off the defense team's plans to call Daniel Fischel, a law professor, as an expert witness.

Nottingham concluded in part that the jury could use its common sense in deciding about Nacchio's motivations to sell stock and "simply didn't need this so-called expert witness to testify that (stock) diversification is an issue in this case."

Circuit Judge Michael McConnell wrote that that's not a reason to exclude an expert from testifying, adding: "Armchair economics is not the way to decide complex securities cases."

During his 18-year career on the bench, Nottingham, now the chief judge of the district court, has been reversed only 14 times out of 108 appeals, according to John Holcomb, of the University of Denver. But most of those cases weren't relevant to what was, indeed, a complex securities case.

Nottingham, referred to as "Sheriff Nottingham" for his toughness and no-nonsense attitude in the court, recently has been referred to as "Naughty" Nottingham for his link to an escort service called Denver Players, and running up a $3,000 tab last year at the downtown Denver topless club Diamond Cabaret.

A disabled Denver woman also filed a complaint against Nottingham for parking in a handicapped spot at a Walgreen's drug store and allegedly losing his temper when she tried to block him from backing out.

Nottingham is being investigated by the 10th Circuit for allegations that he "has brought disrepute to the judiciary."

But legal experts almost uniformly praised Nottingham for how he handled the Nacchio trial, and that continued, even with Monday's reversal.

"I've had my problems with him (over the years)" said Curtis Kennedy, an attorney for the Association of U S West Retirees. "I was called in for a 6 a.m. hearing and the (U.S.) marshals had to show up at 5:30 to secure the building."

But Kennedy noted that in what was a complicated Nacchio trial, Nottingham was "called on the carpet on only one error."

"The only mistake was in not allowing the expert witness. The rest of the trial was clean," Kennedy said.

The appellate panel didn't conclude that any of the jury instructions were wrong. They didn't say Nottingham was wrong to limit Nacchio's "classified information" defense. And the panel said there was sufficient evidence for a jury to convict Nacchio.

Kennedy did say he believes the reason the case isn't being returned to Nottingham, which would be the most efficient way to proceed with a second trial, is because Nottingham gave Nacchio a "personal tongue lashing" during July's sentencing. That included a lecture on morality and ethics, and how no one is above the law.

In its brief, the appellate panel said Nottingham couldn't reasonably be expected to judge the Nacchio case again with a fresh mind, given the rulings he made.

Criminal defense attorney Jeralyn Merritt noted that the appellate panel didn't find any judicial misconduct and that it rejected Nacchio's argument that Nottingham was biased. Merritt said it was apparent there were "issues" between Nottingham and Nacchio's lead defense attorney, Herbert Stern, a former federal judge. Nottingham was visibly angry several times with Stern.

But, Merritt added: "I have a tremendous respect for (Nottingham's) judicial abilities. As far as I'm concerned, he gives a fair trial, although he's harder on sentencing than I would like."

Comments

  • March 18, 2008

    5:34 a.m.

    Suggest removal

    roger44 writes:

    One more white collar criminal goes free, if it were a poor man he'd be in jail pending appeal.

  • March 18, 2008

    8:40 a.m.

    Suggest removal

    LaszloPanaflex writes:

    Judge Ed is famous for scheduling hearings at 6 am to punish attorneys. Maybe the appellate court should punish him by putting him on a 'no hookers 'til sundown' leash.