Corporate Governance

US v. Nacchio (En Banc): The Government Speaks (And Disagrees with the Order to Change the Trial Judge)

By J. Robert Brown

One of the oddities in the case was the decision by the majority on the panel to change trial judges.  The Defense asked for the change but provided little rational, simply requesting that the court "exercise its inherent power ? to reassign this case to a different district judge." 

Despite the absence of any significant argument, the majority took it upon itself to review the transcript and remove the trial judge.  As the majority concluded:  "After reading the trial transcript, we have concluded that it would be unreasonably difficult to expect this judge to retry the case with a fresh mind."   This was nothing short of a slap to Judge Nottingham with the two judges in the majority (McConnell and Kelly) all but concluding that he was biased against the Defendant, despite the absence of any such argument by Defendants themselves. 

In the Government's en banc brief, there is a subtle argument that this decision should be reversed.  As noted in footnote 16:

• The panel?s decision to ?assign a new trial to a new district judge? (Add.59) would exacerbate the costs inherent in a retrial, contrary to the panel?s assurance (Add. 60). The new judge would not have any experience with this case, which, though not byzantine, is much more complicated and fact-intensive than the average case. Getting the new judge up to speed would take time. Even assuming the new judge would handle any limited remand, the judge?s review of and rulings on the admissibility issue would be far less time-consuming than a full-blown retrial.
  

In other words, if the case is sent back for any reason, it should be given to the same judge. 

Full post as published by The Race to the Bottom on September 08, 2008 (boomark / email).