The Appeal of Joe Nacchio and The 10th Circuit En Banc Hearing: A Prediction

We are sure that the Tenth Circuit agreed to rehear the case because of its possible impact on the trial courts in the circuit.  We also note that going into the case, Nacchio is at a disadvantage.

In the original panel, he drew an unusually good draw.  First, the panel heard the motion for bail pending appeal and granted it, a clear indication that at least two of the judges saw reversible error.  Then, as we have noted, in an extraordinary fashion, the panel opted to retain control over the case, arguably in violation of the traditional notion of random assignment of cases, and hear it on an accelerated basis that only disadvantaged the government.  It was not the kind of treatment that could be expected of, say, a defendant in a drug conviction. 

Second, one judge (McConnell) graduated from the University of Chicago (as we have noted, the same law school as appellate counsel for Nacchio, Maureen Mahoney, and the excluded expert, Daniel Fischel).  You probably can't graduate from that law school without an accentuated belief in the importance of economic analysis, the very type of information excluded by the trial judge.  It was no real surprise that he would look for a way to reverse a case that excluded this type of evidence.  Another, Judge Kelly, viewed the case as government overreaching and evidenced clear hostility towards the trial judge calling his ruling on Fischel's testimony "the most simplistic thing I've ever seen."

But in the en banc hearing, these advantages will be gone.  The Chicago connection is gone.  Of the judges who will hear the case, only McConnell has gone to Chicago.  The respective law schools?  HENRY, Chie f Judge (Oklahoma), TACHA (Michigan),  KELLY (Fordham), BRISCOE (Virginia), LUCERO (George Washington), MURPHY (Wyoming), HARTZ (Harvard), McCONNELL (Chicago), and HOLMES (Georgetown).  The accentuated importance for the excluded information that comes from three years of indoctrination during law school will not predominate among the judges hearing the case en banc.  Similarly, the implacable hostility shown by Judge Kelly for the government and the trial judge is not likely to be present to any significant degree.  It probably helps that a fair amount of time has elapsed since the terrible publicity surrounding Judge Nottingham.  

With these advantages gone, Nacchio will see a different outcome.  The Court will reverse the panel and remand to the trial judge for a hearing.  The hearing will either address the facts and circumstances surrounding the failure to request the hearing (did the Defendant really have adequate opportunity given the fast paced nature of the process) or to determine the appropriate remedy should a hearing have been required.  The interesting question will be whether the court en banc sends the case back to Judge Nottingham for the evidentiary hearing or, consistent with the panel decision, requires that another judge be assigned to the case.