2nd Question in a Follow-Up Q&A with the Rocky Mountain News

This post is the second in a series of 3 follow-up questions relating to an earlier Q&A set with the Rocky Mountain News regarding the Nacchio trial. (You may read limited excerpts of the original Q&A set in the article entitled "DU students, professors weigh in on ex-CEO's trial “ on April 16^th, or scroll down for a complete list.

2) What issues do you think the defense will raise on appeal, and what chances do you think they have of succeeding on them?

Kevin O’Brien: While there were a number of motions for mistrial, they involve grounds that do not warrant reversal (examples: prejudicial evidence of Nacchio’s half billion in wealth and Qwest employee’s testimony). Perhaps Nacchio’s best ground is his inability, due to Nottingham’s rulings, to offer evidence of material positive information in the form of secret government contracts Qwest was likely to win. Finally, the government has a great track record (around 90%) on being sustained on appeal in white collar crime cases.

John Holcomb: The defense will certainly raise the exclusion of the national security defense as one of the bases for its appeal, but with almost no hope of success. As reporter David Milstead has observed, any chance of Qwest winning defense contracts would not have rescued its falling earnings for the time period in question. It might have only led Nacchio to buy back shares at a lower price in the future. The defense might also look for evidence of juror misconduct or invalid jury instructions with little hope of success there as well. Finally, it might claim that some of Judge Nottingham’s adverse rulings were unjustified, but most of his rulings went against the prosecution, not the defense. In the judge’s words, he exercised “an abundance of caution” in one of those rulings and in so doing virtually made the verdict bulletproof. Given that only 3.9% of criminal judgments reviewed by the Tenth Circuit during the latest year were reversed, and given that Judge Nottingham has been reversed only once in seventeen years, the defense has almost no chance of prevailing on appeal.

Armin Sarabi: We can only wait and see what issues are raised, however, I can tell you that Judge Nottingham ruled in opposition of Mr. Stern's motions and objections regularly throughout the trial. On a few occasions Judge Nottingham stated that the motions made by Defense were not significant enough to warrant a mistrial. I also recall an exchange between Mr. Stern and Judge Nottingham, where Judge Nottingham told Mr. Stern that if he wanted to he could take the issue up later in appeal (one could tell from Judge Nottingham's tone of voice that he had no doubt his ruling was proper and not subject to appeal).