Wednesday, February 25, 2009

Nacchio Conviction Reinstated

The Tenth Circuit en banc reinstated the convictions of former CEO of Qwest Communications International, Inc. (See opinion)  A prior panel had found it improper to exclude defense expert testimony.  In a 104 page decision (52 page majority), 5 judges on the Tenth Circuit held that "the district court's exclusion of the testimony was not arbitrary, capricious, whimsical, or manifestly unreasonable: nor are we convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances."

Four members of the court dissented.  The dissent states, "[t]he flaw in the government's argument is that the rules of criminal procedure, unlike the rules of civil procedure, do not require a criminal defendant to establish the foundation for expert testimony through advance written submissions." Circuit Judge Kelly, writing an additional dissent has a classic opening line - "[i]t is indeed unfortunate that the court chooses expediency over due process." 

The real question may be whether the Supreme Court grants a request to review, and whether they find that due process requires the defense be given the opportunity to present their its case. I can't help but remember these words from the case of Washington v. Texas, 388 U.S. 14, 19 (1967):

"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."

See also Dionne Searcey, WSJ Blog, Tenth Circuit Upholds Nacchio's Conviction; Prison Time Likely Awaits ; Andy Vuong, Denver Post, Full Court Upholds Nacchio Insider Trading Conviction

(esp)(w/ a hat tip to Peter Henning)

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I think we'd all agree that "due process requires the defense be given the opportunity to present their (sic) case". Is that what happened in Nacchio? I don't think so. What is unusual about the trial court's decision in Nacchio is that, under the category of "Things Which Happen All The Time From Which We Avert Our Eyes", such sanction has almost always in the past been visited upon the prosecution, and the defense is hardly ever held accountable for violation of the rule.

It is ludicrous to call such a tactical move "an understandable and inconsequential mistake", as stated in a dissenting opinion. The defense team, hard-charging vets of the criminal wars, and no shrinking violets or absent-minded academicians, "forgot" to give the well-known required notice of intent to use an expert witness until the eve of trial. This is a standard defense tactic in "battle of the experts" cases, and defense violations of the rule are pro forma. Besides, if such expert testimony was so crucial to the defense, then it is simply not possible the defense "overlooked" giving the prosecution notice of the appearance of what is now claimed to be the linchpin of the defense case.

All that happened here is that for once a defendant was required to play by the rules.

Posted by: jum1801 | Feb 26, 2009 9:03:07 AM

In the Nacchio conviction the defense was obviously not give a change to deliver their case and this is where the travesty lies.

Posted by: etf trend trading | Sep 10, 2009 8:35:09 PM

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