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April 14, 2010

Judge orders Nacchio to appear in court to waive his right to appear in court

Trial-fk Somewhere Franz Kafka is smiling (or crying).  As detailed in this Denver Post article, a prominent white-collar defendant has been ordered to appear in federal court in order to be able to effectively waive his right to appear in federal court:

Joe Nacchio, currently serving time in Minersville, Pa., for criminal insider trading, could soon make a public appearance in Denver — in prison clothes.

A federal judge Tuesday ordered the former Qwest chief executive to appear at a hearing in U.S. District Court in Denver to ensure that Nacchio's planned waiver of his right to attend his resentencing is "voluntary and informed."

U.S. District Judge Marcia Krieger said she wants Nacchio to be transported "at the earliest possible time," though a date for the hearing has not been set.

Nacchio began serving a six-year prison term in April 2009. In July, an appeals-court panel ordered a resentencing for Nacchio because the trial judge erred during the initial sentencing in 2007. The ruling means Nacchio's prison term could be shortened.

Nacchio, 60, would likely return to Denver via the Justice Prisoner and Alien Transportation System's private aircraft — otherwise known as Con Air. He would be held at a local detention center based on space availability, said Dave Floyd, a spokesman for the U.S. Marshals Service. Floyd couldn't provide cost estimates.

Nacchio would probably be required to attend the hearing in prison garb because he won't appear before a jury, said former federal prosecutor Rick Kornfeld. Defendants in custody may appear in civilian clothes if a jury is present.

Nacchio attorney Sean Berko witz didn't respond to requests for comment Tuesday. In March, Berkowitz indicated in a filing that Nacchio planned to waive his right to appear at the resentencing. The Justice Department objected, stating that Nacchio's presence would help achieve some of the goals of sentencing, such as "promoting deterrence."

Krieger said in Tuesday's order that Nacchio has the legal right to waive his appearance, but the waiver "is not effective unless it is both informed and voluntarily made." Berkowitz has said Nacchio "is willing to execute whatever document the court deems appropriate to reflect his knowing and voluntary waiver."

But Krieger cited several reasons for mandating Nacchio's presence: He has changed attorneys since the initial sentencing. He is currently incarcerated. And Krieger is overseeing the resentencing and not the trial judge, Edward Nottingham, who handed down the initial sentence but has since resigned.

Judge Krieger's full opinion in support of his order can be downloaded here:

Download 04-13-10nacchio_order

April 14, 2010 at 09:03 AM | Permalink


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It is scarcely unknown for a defendant to want to backtrack on his waiver by claiming he was misled in some fashion about it. I saw this from time to time when defendants would waive the right to appeal their sentences, only to claim later that they had been suffering from stress (or drugs, or they misunderstood their lawyer, etc.).

If defendants could uniformly be trusted to keep their word, this personal appearance would be unnecessary. Since they cant't, he's just going to have to show up. The judge will then be able to make factual findings for the record that the prisoner was fully alert, paid close attention, evidenced no confusion or misunderstanding, conferred frequently with counsel, etc. That will reduce the possibility of attempting to renege on the waiver.

What a dreadful hardship!

And there's this too, apart form the court's interest in buttressing the integrity of the waiver: As those of you who actually deal with these people know, prisoners typically LIKE courtroom hearings, because it gives them a break from the boredom of prison life. A little trip outside the walls is welcome. When I worked in the EDVA, we would see prisoners file frivolous motions -- not to be annoying, but just to get a day trip.

Posted by: Bill Otis | Apr 14, 2010 9:23:56 AM

Unlike Bill, I actually represent defendants, and my experience is just the opposite. My clients generally hate being dragged across the country to appear in court. The trip, which often takes weeks (not all defendants go by Con Air),is highly unpleasant, with things like stays in crowded local jails along the way, leg irons, boxes encasing handcuffed wrists, etc. Yes, I know, if they don't like such trips, they shouldn't have done the crime in the first place. My point (an obvious one, to be sure) is just that Bill's former experience as a prosecutor doesn't make him an expert on what defendants think.

Posted by: AFPD | Apr 14, 2010 10:58:25 AM


I never claimed to be an expert on what defendants think. But I know what the defendants I dealt with thought. Do you?

Do you have any disagreement with the first two paragraphs of my earlier post?

Posted by: Bill Otis | Apr 14, 2010 11:29:16 AM

How about video teleconference? Has no one in this situation thought of this solution? The Judge could simply have a video teleconference to discuss the waiver -- and make all the findings necessary. It seems to me that if the client wants to waive his appearance, then this Judge could make that inquiry via video teleconference and that waiver should/would be effective if the right findings are made. Or am I missing something?

Posted by: Another AFPD | Apr 14, 2010 11:37:51 AM

Another AFPD --

The judge's finding of a knowing and voluntary waiver will be stronger if the defendant is right there in the same room with him, can see if his eyes are glassy, whether his breath smells of alcohol, whether he seems fully alert or just kind of alert, whether he has a confident (or unsteady) air about him, etc.

Posted by: Bill Otis | Apr 14, 2010 11:48:37 AM

I agree with AFPD. Bill is incorrect when he says "As those of you who actually deal with these people know, prisoners typically LIKE courtroom hearings."

While Bill may not be claiming to be an expert on what defendants think (which is unusual, because he often claims to tell others what they really think), he certainly did make an incorrect generalization about what "prisoners typically like" and incorrectly assumes those of us who "deal with [them]" would agree. In fact, under Rule 43(c)(1)(B), a defendant frequently wants to waive his/her personal appearance at a re-sentencing (or requests to appear via video-conference) due to all the reasons AFPD noted.

Posted by: DEJ | Apr 14, 2010 11:52:56 AM

Really, Bill? You really think you know what defendants you prosecuted thought? Did you sit down and talk to them? I would find it quite surprising if you did.
As DEJ points out, you were simply wrong in your assumption as to what most defendants think on the subject of traveling for court. That doesn't surprise me. What did surprise me was your claim to know what defendants think. A little presumptuous, even for you.

Posted by: AFPD | Apr 14, 2010 12:00:36 PM

Just to add into the chorus: most (although not all) of my clients would prefer not to be pulled out of the prison they are being housed in to attend a re-sentencing, although there are exceptions. The trip is unpleasant (and can take many days, since most don't fly con air). They lose their job and get pulled out of any programs they are taking. Of course, it's always hard to generalize when you're dealing with a pretty diverse group of people.

Posted by: PD | Apr 14, 2010 12:20:07 PM

So I see that no one here has lodged any disagreement that the waiver is on firmer ground if taken before the judge. Fine. Thank you, gentlemen.

Posted by: Bill Otis | Apr 14, 2010 12:37:27 PM

all i can say is TYPICAL govt STUPIDITY. have to appear to wave your right to APPEAL....

Posted by: rodsmith | Apr 14, 2010 12:57:31 PM

sorry APPEAR.

Posted by: rodsmith | Apr 14, 2010 12:58:07 PM

"So I see that no one here has lodged any disagreement that the waiver is on firmer ground if taken before the judge."

How about *a* judge, not necessarily *this* judge. Maybe a magistrate judge in Pennsylvania?

Posted by: Kent Scheidegger | Apr 14, 2010 1:04:34 PM

Is it really a Kafkaesque procedure if the ultimate goal is to ensure the reliability of what the defendant actually wants, which here would be the waiver of his rights? "The Trial" features an obstructionist bureaucratic judicial system, the endurance of which weakens the will of defendants, true. But the design of that system is to ensure convictions. Defendants have no chance of getting at actual acquittal, and can only hope to delay the process through backroom dealings. Here, the court is attempting to ensure the reliability of the waiver of rights, because this judicial system actually thinks those rights accorded to criminal defendants are pretty important.

Posted by: Buffalo Bill | Apr 14, 2010 1:31:56 PM

I'm assuming that Bill works for the Feds. Federal employees most always make assumptions that benefit the government and don't give any consderations of the risks and suffering defendents may encounter. Notice USAttys generally speaking, go for the max sentence and fight for dear life to attain it.. Seldom any effort to even consider downward departures. The ashcroft memorandum, prosecute the highest level charge, ensure guideline sentences. Holder says, WIN....With the incredibly general nature of the statues and the fact the prosecutors Team and the Judge are a tag team, how could they not.
Nice to live in a Sterile Castle Bill, out of the way of lifes daily strugggles...Your a CLOD.

Posted by: Goodyr | Apr 14, 2010 1:51:22 PM

Well, if that is the ruling and the reason for not wanting to attend is convenience, I would think that Nachio would withdraw his motion and just show up for sentencing. If you have to show up, might as well be for the game, not the practice.

Posted by: Allan | Apr 14, 2010 3:15:39 PM

No, Bill, no one has refuted your argument that the waiver is on the firmest possible ground if taken personally. For that reason, in the end, the Defendant will have to suck it up and attend. Even though a videoconference, commonly used for arraignments & bail hearings in state courts, could pretty easily allow a full colloquy, allow the court to assess the Defendant's demeanor, and create a sufficient record to sustain the waiver--all while saving the government considerable expense and delay.

What several knowledgeable defense attorneys are responding to is not your first two paragraphs, but your smug and sarcastic assertion in the third paragraph that it's no hardship for the prisoner. As the AFPD's explain, it's actually significant hardship--especially if traveling by bus, from town to town and jail to jail, rather than air ("diesel therapy," they call it). It's not just that being shackled for days or weeks is unpleasant. For a typical white collar defendant like Mr. Nacchio, the con transport system is a threat to safety. He is much more secure from violence in his minimum security federal facility than in the jails and detention centers along the way from wherever he's imprisoned to Denver. The desire to be free from weeks of living under threats to his physical safety is ample reason for him to desire to give up his right to allocute and to leave the guidelines and restitution math to the lawyers.

Yes, he was convicted of the crime and he has to attend if the judge orders it. But it's pretty glib, and certainly inaccurate, to breezily belittle the idea that there's any hardship here.

The government's argument that attendance should be required to foster the purposes of 3553(a) (deterrence and punishment) show their position is not based on concerns about the integrity of the waiver. They're after another perp walk--to humiliate the defendant and hold him up as an example. If he gets punished by harsh treatment during con transport, so much the better, apparently. But they already got whatever a sentencing proceeding itself gives in the way of 3553(a) at the first sentencing. Going for it again at a second sentencing (or two) simply because the appellate court said to re-do the math seems gratuitous.

BTW, the judge cited an odd provision for her jurisdiction--28 USC 1331, which gives her jurisdiction over civil actions. She might want to fix that in the opinions template for criminal cases.

Posted by: Def. Atty. | Apr 14, 2010 3:34:03 PM

Kent --

No problem with that.

Posted by: Bill Otis | Apr 14, 2010 3:35:33 PM

Goodyr --

"I'm assuming that Bill works for the Feds."

You're assuming wrong. You could always ask, however.

"Federal employees most always make assumptions that benefit the government and don't give any consderations of the risks and suffering defendents may encounter."

And your documentation for your characterization of federal employees is.........what?

BTW, while Nacchio is a defendant at this proceeding, he is already an inmate as a result of his conviction in an earlier proceeding. The government has the right to transfer inmates to different locations for a variety of reasons, including dangerousness, medical problems or the preferences (not to mention orders) of the court.

"Notice USAttys generally speaking, go for the max sentence and fight for dear life to attain it."

US Attorneys have the same obligation as other attorneys to provide zealous representation for the client. I'm aware that there is considerable resentment when the prosecutor refuses to give away the store. It is not the prosecutor's job, however, to surrender to the indignation of his adversary.

"Seldom any effort to even consider downward departures."

I would say that's an outright lie, but I suspect it's just aggressive ignorance. The number of downward departures brought about by a government motion (roughly 24% of all federal felony sentences) is more than twice the number brought about by a defense motion.

"Holder says, WIN....With the incredibly general nature of the statues and the fact the prosecutors Team and the Judge are a tag team, how could they not."

Better to have an Attorney General who says LOSE? And yes, I'm sure that, just as you say, there's a corrupt conspiracy between the judges and the AUSA's.

"Nice to live in a Sterile Castle Bill, out of the way of lifes daily strugggles...Your a CLOD.

YOUR "clod" statement presumes things that aren't true, and YOU'RE in need of a dictionary.

Posted by: Bill Otis | Apr 14, 2010 4:08:08 PM

I guess I'm the only one that liked the judge's opinion and thought it a model of sanity. It seems to me *in this specific case* exactly the right thing to do. It's what I would have done.

Posted by: Daniel | Apr 14, 2010 4:28:24 PM

Def. Atty. --

"No, Bill, no one has refuted your argument that the waiver is on the firmest possible ground if taken personally."

Then all the rest is just ad hominem.

"What several knowledgeable defense attorneys are responding to is not your first two paragraphs, but your smug and sarcastic assertion..."

QED. I also notice that you had no problem, so far as your post reveals, with Goodyr's assertion of my "clodiness." Would you say that your concern about personal characterizations is a mite selective?

While we're at it, you also had no announced problem with the astoundingly false claim that the government seldom makes an effort "to even consider downward departures." Why is that?

"...that it's no hardship for the prisoner."

First, as long as it conforms the Eighth Amendment, the government is under no obligation to avoid hardship to the prisoner. They don't deserve a taxpayer financed country club, and we were not in the business of providing one.

Second, none of you bothered to ask about the factual basis for my saying that inmates liked these trips. You just assumed that your experience is the same as mine.

Not exactly.

Early on in my career at the USAO for EDVA, we had jurisdicition over Lorton Reformatory, at that time the prison for the District of Columbia (which, oddly, was located in Lorton, Virginia, about half an hour's bus ride from the courthouse in Alexndria). The prisoners would get into fights every now and again in the rec yard, and sometimes these were serious enough to warrant charges, although most were handled through prison discipline, such as it was.

The Lorton defendants in these episodes would call as witnesses their buddies at the prison, many of whom had also been their buddies in the 'hood in DC. They were yucking it up and hamming it up the whole bus ride, just having a good 'ole time. This continued right up to their testimony that day, which generally consisted of belligerent perjury, which they (correctly) thought they could get away with, since we in the USAO just had too much else to worry about. Then it was the same party time on the way back down to Lorton. If they were lucky, the whole thing would have to get repeated the next day.

So don't tell me based on your experience what my experience was. If you care to find out, ask. Don't assume.

Posted by: Bill Otis | Apr 14, 2010 5:02:33 PM

I have dealt with some state prisoners serving long sentences, who were likely to stay in the same facility until death, who were glad/excited just to get driven in a van somewhere for a hearing. At least they get to see the landscape, maybe see some familiar landmarks, maybe even get Burger King or Taco Bell if the guard-driver is in a good mood. Also, sometimes folks from their home town who have trouble getting to the prison to visit (or arent' allowed to visit b/c of prior felony convictions) can attend the hearing and/or visit while they are in the local jail.

On the other hand, in my experience, folks on shorter sentences -- who can realistically anticipate the end of their sentence -- are less likely to be interested in disrupting their routine. Particularly not to go to a crowded local jail (although typically the inmate is going back to the county where he was tried, so at least he is familiar with the crappy local jail).

In the federal situation, these factors would seem to be magnified. Where there is a need to travel cross country and be housed in some unknown, likely less-auspicious setting, and there is a reasonable anticipation of getting out in a couple years, I would not be surprised if the inmate was not enthusiastic about the trip.

Posted by: southern atty | Apr 14, 2010 5:30:36 PM

First Bill says "As those of you actually deal with these people know, prisoners typically LIKE courtroom hearings, because it gives them a break from the boredom of prison life." Bill assumes, based on his experience in a court system where the prison was 30 minutes from the courthouse, that "prisoners typically LIKE" being transported from prison to court. He doesn't ask "those of us who actually deal with these people." He just assumes. He assumes that the situation is the same with prisoners like Nacchio whose prison may be 1000 miles form the courthouse. And then of course he rips a subsequent commentator for doing exactly what he did.

This is why I don't usually bother to take the time to respond to Bill's comments. But his assumption about what "prisoners typically LIKE" was just too grossly ignorant for me to ignore this time.

And by the way, dear Bill, I'm not a gentleman; I'm not a man of any kind. It may not have been the case when you practiced law, but your assumption in 2010 that every lawyer is a man may need updating.

Posted by: AFPD | Apr 14, 2010 6:05:42 PM


"This is why I don't usually bother to take the time to respond to Bill's comments."

Well my goodness, Ms. Hotshot.

Tell ya what. You can expose me live and in person for the dope you say I am -- at a debate. Let's debate the death penalty -- that's a biggie in the PD's office. We'll do it in public, so you won't be able to hide behind anonymity, as you do now. And where you can try all your ad hominem stuff and see how well it goes over.

So find a law school nearby and we'll have at it. Deal?

P.S. Why do you assume I no longer practice law simply because I'm no longer with the government?

Posted by: Bill Otis | Apr 14, 2010 6:20:11 PM

I assume it b/c you don't seem to realize that there is such a thing in this day and age as a female lawyer. A female lawyer may have been unusual 40 years ago; it's not anymore.

And, Mr. Hotshot, you are not in a good position to talk about ad hominem attacks. Something about unclean hands . . .

I notice you've quit trying to defend your position that prisoners typically like being transported from prison to court. Thank you, gentleman.

Posted by: AFPD | Apr 14, 2010 6:30:57 PM


1. My wife was a Supreme Court law clerk and General Counsel to DOE. SURPRISE!!!

2. I stopped "defending" my position to you because you don't listen, and it's not going to do any good to repeat it.

3. You don't need to refer to me as "gentleman" because I use my real name here. Any your name is...............?

4. What, no debate? But, according to you, you're a lot smarter. Not to mention younger and, you know, with it. I'm fish in a barrel. You can expose me totally. So let's go, OK?

Posted by: Bill Otis | Apr 14, 2010 6:46:28 PM


P.S. I note that you've quit trying to defend your substantive position. Indeed, you never really started. This is just as well, since your fellow (forgive the sexism) defense attorney was honest enough to admit point blank: "No, Bill, no one has refuted your argument that the waiver is on the firmest possible ground if taken personally."

That is what this thread was supposed to be about, not so?

Posted by: Bill Otis | Apr 14, 2010 6:53:51 PM

Yet another red-herring hide-the-ball performance by our torture cheerleader. Why am I not surprised?

Posted by: Mark # 1 | Apr 15, 2010 3:57:51 AM

Bill: Congratulations on marrying up. If you have kids, without invading anyone's privacy, what line of work are they interested in?

Posted by: Supremacy Claus | Apr 15, 2010 8:12:24 AM

Hey Mikey --

Don't be a chauvanist. Let Ms. AFPD speak for herself.

I'm surprised to hear that an offer to publicly debate in the forum of my opponent's choosing is a "red herring." I had thought that in considering issues of public importance, debate was to be desired.

A public debate before a live audience is in the best traditions of this country, if you didn't know. It tends to keep the participants focused on the substantive issue (the death penalty or any other) and steers them away from ad hominems like "torture cheerleader." Of course if ad hominems are all you have, that would be a problem, wouldn't it?

So if you have something substantive to add to the subject of this thread (whether a live appearance before the judge is appropriate when the judge is considering accepting a waiver of the defendant's rights), feel free to explain your analysis.

Just repeating for the umpteenth time what is becoming your all-purpose epithet really doesn't advance the ball. If you have some actual thinking on the subject here, feel free to chime in. If not, besides rudeness, what's the point?

Posted by: Bill Otis | Apr 15, 2010 8:28:18 AM

SC --

Since I use my real name here, I stay away from discussing any non-adult family members. If I were to have children, I'm sure their principal vocational interest would be torture. Just ask Mikey.

Posted by: Bill Otis | Apr 15, 2010 8:39:13 AM

"...They're after another perp walk--to humiliate the defendant and hold him up as an example."

I can certainly understand why a once-proud CEO wouldn't want to be paraded through a courthouse shuffling around in an orange jumpsuit trussed up like Hannibal Lecter.

Posted by: John K | Apr 15, 2010 10:34:25 AM

John K --

If the reason he was "once proud" is that he made a fortune by deceit, then he OUGHT to feel ashamed.

Posted by: Bill Otis | Apr 15, 2010 11:18:25 AM

Sounds a little sanctimonious, Bill. The fact he'll spend the next several years in prison isn't enough for you?

If nothing else, Nacchio can be proud of telling the Bush folks to stuff it when they tried to pressure his company to spy illegally on Americans.

Posted by: John K | Apr 15, 2010 7:01:52 PM

BTW, Bill, other than the fact Nacchio got hammered and Bush got a pass, what's the difference between what Bush did at Harken and what Nacchio did at Qwest?

Posted by: John K | Apr 15, 2010 7:15:29 PM


Yesterday, following your unenthusiastic evaluation of my intelligence, I invited you to debate the death penalty before a live audience at the law school of your choosing. This should be a no-brainer for you. You have announced that you are a good deal smarter than I am. To wit: You huffed that you don't "usually bother to take the time to respond to [my] comments," but my "assumptions" on this thread are "just too grossly ignorant for [you] to ignore this time." Indeed I'm so out of it that I "don't seem to realize that there is such a thing in this day and age as a female lawyer."

Gads, I must be a total dope. It's therefore obvious that you could wax me in a debate. In doing so, you would advance your work for "fairness" and "due process." You would expose me and my retentionist arguments as idiotic if not barbaric. You would do your office proud. You would make headway for that Enlightened Day when we put this bloodsoaked relic behind us.

So I'm surprised you have remained so silent since my invitation.

Cat got your tongue all of a sudden?

I re-issue my invitation. Death penalty. Law school, live audience. Questions welcome.

What do you say?

Posted by: Bill Otis | Apr 15, 2010 8:14:24 PM

Bill: I was just curious about the issue of two such legal thoroughbreds.

If you do debate the death penalty in a law school, I would appreciate an invitation. I would come as the Ambassador of Earth to the Lawyer Twilight Zone.

Posted by: Supremacy Claus | Apr 15, 2010 9:29:18 PM

SC --

I can't have the debate unless AFPD agrees. As I have noted, I can't imagine why she would decline, because she would advance the ball for her side while exposing me as an imbicile. Nonetheless, curiously she is silent.

Imagine that.

If there is a debate, you are more than welcome to attend as far as I am concerned, in any capacity you choose.

Posted by: Bill Otis | Apr 15, 2010 9:36:38 PM

I am sure, she has nothing to fear. You will be civil, considerate, and will not kick her all over the place when she is down. If you stimulate new ideas in her mind, she would be the better for it. I also note that you avoid lawyer language (a sincere compliment), and your comments are accessible to anyone interested in the subject.

My points will be:

1) rent seeking purposes served by recent Supreme Court decisions, and predictably so;

2) dose-response curve;

3) deterrence of others lawless and unfair;

4) other points no lawyer can make.

Posted by: Supremacy Claus | Apr 15, 2010 11:10:23 PM

Mr. Scheidegger:

An even better suggestion. A magistrate judge in Pennsylvania should certainly suffice for a waiver. If we are really interested in the validity of the waiver, then a magistrate judge is perfectly capable of handling the hearing. Perhaps that is not the real agenda....?

Posted by: Another AFPD | Apr 15, 2010 11:41:03 PM

Some of the back story here may in fact involve the Residential Drug Abuse Program, the subject of a recent post, or some other BOP programming. It's very disruptive to be removed from your prison cell when you've got yourself established--your stuff will be packed up, you'll lose your cell mate. But I am representing a client who has been accepted into RDAP, and has a date when he will begin, etc. He has been suggesting to me foregoing a meritorious appeal of his sentencing, because in the event we prevail he fears being remanded to a local prison for ages, which will upset the apple cart. He will have to reapply for RDAP, he thinks, and so lose the benefits of that, which include a sentencing reduction. And I imagine there's no guarantee you'll be put back in the same facility when you're done. I had thought we would just waive his presence at re-sentencing, but now we have to worry that the district judge might be curious. At least I don't have a vindictive prosecutor. The government argued schlepping him back for re-sentence would "promote deterrence"--of what? sentencing appeals?

Posted by: East coast AFPD | Apr 16, 2010 7:02:49 AM

Another AFPD; East coast PD --

As I said to Kent two days ago, I have no problem with Nacchio's appearing in person before a qualified judicial officer. Indeed I would have no problem with his waiving by just signing the paper -- IF defendants could be trusted not to try to go back on what they agreed to by claiming some kind of non-existent duress or misunderstanding. But they can't.

Since AFPD refuses to disclose who she is or where she works, I don't know if either of you know her. So it might be an empty gesture to ask, but I will anyway: Is there some reason to object to a debate before a live audience? I don't know if you agree with her assessment that, in this area and presumably others, I am "grossly ignorant," (her words), but assuming arguendo that she is correct, that is MORE reason for her to want to debate, not less.

The subject I have suggested -- the death penalty -- is hardly unimportant. Indeed it is among the most prominent and divisive sentencing issues we face. Public defenders are not exactly silent about it.

So why the silence now?

If public defenders believe that a better informed electorate will come their way on capital punishment, a live, open, law school debate is all to the good. And, from their point of view, a dull-witted retentionist for an opponent is even better.

So why the silence? AFPD should be eager. What sensible reason is there to duck?

Posted by: Bill Otis | Apr 16, 2010 10:13:43 AM

Mr. Otis, perhaps because most working adults will not want to drop whatever they're doing, work and family commitments and all, and then, in all probability, spend several hundred dollars to travel to debate a total stranger. Maybe you should sweeten the deal by offering to pay for airfare and lost wages.

Posted by: Buffalo Bill | Apr 16, 2010 1:10:18 PM

Buffalo Bill --

"... perhaps [AFPD doesn't respond to my invitation to debate the DP] because most working adults will not want to drop whatever they're doing, work and family commitments and all, and then, in all probability, spend several hundred dollars to travel to debate a total stranger."

Of course if those were her reasons, she could say so, right?

The excuse you make for her is, as your wording concedes, entirely speculative. For all you (or I) know, she lives around the corner.
In addition, I never asked her to drop everything she's doing to have the debate. I'll be happy to accommodate having it at a mutually convenient time.

As for expense, organizations like the Constitution Project, Federalist Soceity, Lawyers Guild and Amnesty International host debates of this kind and pay the participants' expenses. And that might be arranged here as well. But I can't know that if she just stonewalls, which is what she's doing now.

And yes, I'm a total stranger. That is generally who shows up on the other side of law school debates.

Here are some possible other explanations for her being AWOL:

-- She is snide and insolent (see her posts to me) and knows that, while she can get away with that here, sniping from behind the cloak of anonymity, she can't get away with it in a live debate. A live audience tends not to react well to such things as "Bill dear, are you really so stupid you don't know women practice law?"

-- She holds a losing hand and knows it. The PD-embraced idea that we should abolish the DP in all cases no matter what is so extreme and unpopular that it is, for the most part, a flop even on liberal-leaning campuses.

-- She doesn't want to face audience questions or mine. Refusing to answer is, again, something it's a lot easier to do here than before a live audience. It is, however, very revealing about the debater's attitude about the free exchange of ideas and the strength of her own case.

Posted by: Bill Otis | Apr 16, 2010 4:42:20 PM

The author of the Supremacy is willing to finance the costs of a death penalty debate between Bill and AFPD anywhere on the East Coast. The preference is for a Saturday morning, but other days are acceptable. Participants could spend the rest of the weekend enjoying the location. If Prof. Berman is still in New York, that would be an excellent location, and he would be invited. The Supremacy requests a 5 minute time slot to quickly list concepts never ever brought up in the death penalty debate. We could invite the press if people want to.

Posted by: Supremacy Claus | Apr 16, 2010 9:24:40 PM

SC --

That's most generous of you. I accept. I will be eager to see if AFPD accepts, or instead remains in hiding.

Buffalo Bill --

It would seem that SC's offer strips AFPD of the innocent excuses to avoid a debate that you advanced for her. Can you think of any reasons she would continue to duck?


SC has now addressed any practical problems you might have had (not that you ever claimed you had any). So you have what amounts to an all-expenses-paid opportunity to show me up as a retentionist so dim and out of it that I don't even know there are women lawyers! God, I shudder to think how thoroughly you're going to wipe me out when we discuss something really important, like the death penalty. You should be chomping at the bit.

I've agreed to SC's offer. Now could you please quit hiding and step up to the plate?

Posted by: Bill Otis | Apr 17, 2010 9:30:54 AM


Posted by: rodsmith | Apr 17, 2010 3:17:06 PM

It sounds to me like they want to humiliate Nacchio. This seems mean and pointless and is also expensive.

Posted by: kay sieverding | Apr 16, 2011 2:00:56 AM

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