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ROBINSON: Ruling, while no surprise, included shocker

By Scott Robinson, Rocky Mountain News (Contact)

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

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Big news yesterday: Joe Nacchio gets a new trial, and he won't have to face the wrath of Judge Edward Nottingham again.

Perhaps.

Although not unanimous, Monday's eagerly awaited court ruling reversed the Nacchio verdict on the basis of Nottingham's exclusion of most of the proposed testimony of defense witness Daniel Fischel, a stock market expert.

And in what can only be described as an extremely unusual decision, the majority agreed with Nacchio's attorneys that the retrial should be in front of a different judge, that it would be "unreasonably difficult" for Nottingham to retry the case with a "fresh mind."

That was the real shocker.

The reversal of the Nacchio conviction itself was not altogether a surprise because the pointed questions asked by the judges months ago during oral argument revealed at least an inclination to rule in favor of Nacchio on the expert-exclusion issue.

The extreme limitations placed on Fischel's testimony left the defense without its star witness, who, it was hoped, would portray Nacchio's stocktrading activity as innocuous.

Even during trial, this ruling by Nottingham seemed somewhat arbitrary and unfair, and now it will necessitate a new trial.

If, that is, the appellate court opinion reversing the conviction becomes final, which is not a sure thing. In overturning the conviction, only two members of the three-judge panel ruled that Nottingham was wrong to circumscribe Fischel's testimony.

The remaining appellate judge dissented, thus helping set the stage for what will surely come next: a request by prosecutors that the appeal be "reheard" by all 12 active 10th Circuit judges.

Such full court rehearings are permitted only occasionally and usually restricted to cases involving issues of "exceptional importance" or conflicting prior 10th Circuit decisions. But the issue that led to the reversal of the Nacchio conviction could well satisfy the "exceptional importance" standard, and the very existence of a dissenting opinion makes a rehearing before the entire 10th Circuit more likely.

As does the almost unprecedented order kicking Nottingham off the case.

Most losing litigants understandably want a different judge to hear their cases the second time around. But ordered reassignment by an appellate court just does not happen.

I could find only one prior 10th Circuit opinion forbidding the original judge from retrying a case after reversal, and that case involved extreme facts demonstrating unquestionable bias.

Some may speculate that allegations that have recently surfaced in the media about Nottingham's personal life played a role in the ordered recusal, but that is not how appeals work.

Rather, ordering Nottingham off the case reflects the full extent to which at least two of the judges believe that Nacchio got a raw deal the first time.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.

Comments

  • March 18, 2008

    5:36 p.m.

    Suggest removal

    peteSmith writes:

    I spoke to a reporter last night with Fox News, who revealed that someone from within the court noted that the extraordinary move of reassigning a judge for retrial, despite finding no actual or perceived bias (see Slip Op. at 59-60) was one of several unofficial ways the Court is pressuring Nottingham to step down (resign). This may be regarded as a low-profile, small-scale analogy of what the court is now doing to federal judge Thomas Porteous in New Orleans, by stripping him of his criminal docket and any cases involving the government. See http://www.nola.com/news/t-p/frontpag... See also http://www.knowyourcourts.com/Notting...

  • March 20, 2008

    9:20 a.m.

    Suggest removal

    RobinHood writes:

    It's probably more about Mike McConnell.

    "Judge McConnell is a “well-respected” constitutional scholar, who has been mentioned as a possible candidate for elevation to the United States Supreme Court. The Nacchio appeal had a high profile -- which meant that McConnell’s work would be certain to attract national attention."
    http://www.knowyourcourts.com/FedJD/d... at 6.

    Denouncing Nottingham is just another way for McConnell to pad his resume.

    If the defendant had been anyone but Joe Nacchio, McConnell would have upheld the conviction in an unpublished opinion, proclaiming that this was a case of unfair surprise masquerading as a denial of the right to be heard. Judges are dishonest like that, and SR knows it as well as anyone.