Appeals difficult vs. Nacchio judge
Legal scholars weigh Nottingham conviction record
By Jeff Smith
Rocky Mountain News
Tuesday, May 15, 2007
The federal judge in the Joe Nacchio insider trading case has
been reversed only 14 times out of 108 appeals during his
17-year career on the bench. And in the cases where U.S.
District Judge Edward Nottingham was reversed, most aren't
relevant to a possible appeal of the Nacchio conviction, said
John Holcomb, University of Denver associate professor of
business ethics and legal studies, who examined Nottingham's
Nacchio was convicted last month of 19 counts of insider trading
in connection with selling $52 million of Qwest stock in April
and May 2001.
He was accused of accelerating his stock sales while knowing
Qwest's finances were faltering. His attorneys have said they
plan to appeal.
Federal judges historically have a low reversal rate, and that's
especially true in criminal cases, Holcomb found.
He cited recent research by university law reviews that placed
the "affirmance" rate for criminal cases at an annual average of
87 percent to 99 percent, and at around 80 percent for civil
cases. Nottingham is in the range.
"Originally I thought he was at the top of the heap, now maybe
in the middle of (what is a high) range," Holcomb said.
Nottingham was affirmed 79 times out of the 108 appeals. Eight
additional cases were affirmed in part, and seven other
decisions generally favored him, such as vacated appeals.
One reversal that caught Holcomb's eye involved a 2000 case in
which the appellate court ruled that Nottingham improperly
allowed an expert witness to testify. Holcomb noted how careful
Nottingham was in the Nacchio trial to exclude expert testimony.
He said the issue of Nottingham allowing U S West retiree Sally
Anderson to testify about her retirement losses could come up,
"but I don't think it will be crucial."
Nottingham struck Anderson's testimony from the record, and
jurors interviewed after the trial didn't mention the testimony
as a factor.
Appeals often challenge jury instructions, but Nottingham "set
the bar pretty high" for the prosecution, Holcomb and other
Nacchio's attorneys have said in court filings they may ask for
a new trial based on how the potential juror pool was selected
from court questionnaires.
"Obviously the defense is going to pick out as many issues as
they can to appeal," Holcomb said, "but as yet I haven't seen
any that are that significant."
Holcomb said Republican-appointed judges tend to issue stiffer
sentences and that Nottingham has a strong record of his
sentences being affirmed on appeal.
Nottingham, the son of western Colorado ranchers, was nominated
by then-President George H. W. Bush in late 1989 but actually
spent a year filling in on the appellate court, Holcomb said.
Nacchio's sentencing is scheduled for July 27. Experts expect
Nottingham to sentence Nacchio to roughly 10 years in prison.
William Chinnock, a former Ohio state judge now living in
Boulder, disagreed with Holcomb that there isn't much basis for
appeal. Chinnock said lead prosecutor Cliff Stricklin crossed
the line in his closing rebuttal.
Stricklin urged jurors not to consider Nacchio the victim in the
case. The true victims, he said, were the people who invested
in Qwest stock without knowing the information that Nacchio
"There are plenty of victims out there. For every sale of stock
that Joe Nacchio made . . . there is somebody on the other side
giving them -- giving him -- their hard-earned money," Stricklin
said. "They invested their dreams, their hopes, maybe early
retirement, maybe college for their kids."
Nacchio's lead attorney, Herbert Stern, moved for a mistrial,
saying the mention of "victims" was improper. Nottingham denied
Chinnock characterized Stricklin's comments as "passion and
prejudice" and predicted Stern could prevail on appeal.
Said Holcomb: "I think the closing passed (legal) muster."
• U.S. District Judge Edward Nottingham's record:
79 decisions affirmed
14 decisions reversed
8 decisions affirmed in part, reversed in part
7 other decisions generally in favor of Nottingham, such as a
Source: John Holcomb, University of Denver, business ethics
and legal studies
smithje@RockyMountainNews.com or 303-954-5155