Nacchio appeal likely to be decided by filings, not oral
By Scott Robinson
Rocky Mountain News
Friday, September 26, 2008
Did Judge Edward Nottingham shortchange the Nacchio defense?
That is the essence of the issues before the nine-judge panel of
the 10th Circuit Court of Appeals, which heard oral arguments
Disputed is Nottingham's ruling
prohibiting the defense from calling law professor and stock
market regulation guru Daniel Fischel as an expert witness, due
to what the judge perceived as a failure by the defense to
adequately disclose the substance and "methodology" of Fischel's
opinions under a 1993 Supreme Court decision.
For the 10th Circuit judges, now rehearing the case en banc,
with nine active members to decide the outcome as opposed to the
three-judge panel which had previously reversed the conviction
in a 2-1 decision, the only issue to be decided is whether
Nacchio received a fair trial.
Appeals are not like trials. The 10th Circuit judges
cannot hear testimony and decide guilt or innocence. That
task is left to the jury.
Rather, the appellate court determines whether the accused got a
And, while the oral argument component of an appeal is
(relatively) more dramatic and accessible to members of the
public, it is the least important stage of an appeal.
Appeals are far more likely to be decided on the quality of the
arguments and legal precedents presented in the so-called briefs
than by eloquence during oral argument.
For the convicted defendant, the selection of issues to be
raised and the supporting legal research is critical, while for
the prosecution, finding support in the record of the trial for
affirming the conviction is the name of the game.
When Fischel's expert testimony was excluded,
Nottingham's ruling seemed abrupt and arbitrary, a
strong point for Nacchio's lawyers, as arbitrary rulings are
vulnerable to reversal.
Undoubtedly, the ruling was devastating to the Nacchio defense
team, as Fischel's testimony was really the only substantive
evidence it had planned: He was the witness who was going
to tie together all aspects of the defense.
And therein is the strongest argument presented by the
prosecution: that Fischel would merely be a defense
attorney in expert witness clothing, who was not acting as a
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
No matter what, though, this case is headed toward the United
States Supreme Court. Whoever loses in the 10th Circuit
will undoubtedly ask the Supreme Court to review the case.
Joe Nacchio's "day in court" is not even close to over.
Scott Robinson is a
trial lawyer specializing in personal injury and criminal