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March 17, 2008

Conviction of Qwest's Nacchio reversed on appeal, could Enron's Skilling be next?

Though technically not about sentencing, it is relevant to the white-collar sentencing world that (according to this WSJ report), "the U.S. Court of Appeals for the 10th Circuit in Denver has ordered a retrial of former Qwest head Joseph Nacchio [voting] 2-1 to overturn all 19 guilty counts ... saying that Judge Edward Nottingham had improperly excluded an expert witness ready to testify for Nacchio."  As also reported by the WSJ Law Blog here, a different attack by defense counsel claiming government misconduct threatens to bring down the conviction of Enron's Jeff Skilling. 

Good lawyers often can make white-collar trial convictions look questionable, especially when appearing before business-friendly appeal courts (just like good lawyers can often make capital convictions look questionable when appearing before abolition-friendly appeal courts).  To add a sentencing spin, I think the severe sentences that white-collar defendants now often receive after going to trial can often play a role (albeit usually unspoken) in the willingness of appellate courts to reverse what they might consider iffy convictions.

I look forward to the bloggy coverage of this interesting news at The Race to the Bottom and White Collar Crime Prof and WSJ Law Blog.

March 17, 2008 at 02:09 PM | Permalink


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» CA10: Daubert in criminal proceedings from Appellate Law
White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311. This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence. Strangely, the Washington Legal Foundation [Read More]

Tracked on Mar 17, 2008 4:41:36 PM


Here's the opinion: http://www.ck10.uscourts.gov/opinions/07/07-1311.pdf

Posted by: | Mar 17, 2008 2:32:41 PM

Doug, I'm not sure it's fair to lump the 10th Circuit (or more accurately, the two judges forming the majority) with courts which have flouted the law with respect to the death penalty. If there are substantive disagreements with McConnell and Kelly's determination, then let's hear them. Without more, the "pro-business" thing is an unjustified smear. I think judges, when they get it wrong, ought to be severely scrutinized, but first we have to determine that they are, in fact, wrong. McConnell seems to be of unquestioned integrity--do you think that he's not being impartial?

Posted by: federalist | Mar 17, 2008 3:32:55 PM


Good lawyers win. On an appeal from a jury verdict, this probably involves making any trial look questionable. They usually win by appealing to what they perceive to be a judge’s psychology and manner of dealing with issues.

Most of this case deals with admissibility of expert testimony. I think it will have wide applicability in other criminal cases. Whatever the case, the District Court spends quite a bit of time bashing the District Judge, and eventually concludes that a new trial is warranted. This is hardly “business friendly.”

One of the problem’s with federalist’s argument, is that he overlooks that lawyers arguing in favor of a killing by the state were simply unable to do this. Clients expect results, and if your client wants to be able to kill someone, then your job is to ethically make that argument. When a court doesn’t side with you, you are a failure. Don’t blame the court. Take some responsibility!

Personally, I have though that McConnell was a bit of a political hack sometimes. (And I have questioned his integrity, and I did not think that he had the moral fiber to serve on the Supreme Court. Luckily, the president agreed with me, as he looked into the heart of Harriet Miers, and saw that she had much more moral character.) But, that doesn’t matter. The defendant had a good lawyer that was able to convince him (or trick him, if you prefer) that a certain result was warranted.

One of the problems with Federalist’s argument (other than that he is a non-lawyer), is that he assumes that judges get things “right” or “wrong.” He then proposes that they be “scrutinized.” (Whatever that means.) Federalist’s idea of “right” and “wrong” exists entirely in his head, yet he expects us to share it. Strangely, this is only step under a concept of “right” and “wrong” existing within the politics of courts, legislatures, and those that might amend the constitution.

Posted by: S.cotus | Mar 17, 2008 4:50:04 PM

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