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Nacchio appeal likely to be decided by filings, not oral argument
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 Thursday.

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 fair shake.

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 disinterested expert.

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 6-3.

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 Denver trial lawyer specializing in personal injury and criminal defense.