Judge Nottingham continues to be the additional judge in the decision making process. After laying out a series of legal arguments about the reasons for reversal, Nacchio's cert petition takes direct aim at the trial judge. As the brief notes:
- As the en banc dissenters explained in detail, the majority mischaracterized the district court’s decision, ignored settled law, and ducked meritorious issues to gloss over obviously prejudicial errors by a district judge whose “sense of fairness toward this defendant” was very much in doubt, App.92a (McConnell, J., dissenting), and who openly displayed ethnic bias against the defendant and his counsel and recently resigned in disgrace in a lurid prostitution and obstruction of justice scandal.
While it seems fair game to argue that in a close case on the evidentiary issue, there was some evidence of unfairness towards the Defendant, the brief goes well beyond that. It suggests that the Court ought to take a close look at the matter because of the moral turpitude of the trial judge.
It is an interesting approach and one that ordinarily would be high risk. Judges do not take kindly to aspersions cast on other judges. Nonetheless, with someone as experienced in Supreme Court behavior as Maureen Mahoney, she must be thinking that in this case, the reference to the trial judge's out of the courtroom peccadilloes will attract the eye of some justices, perhaps those with an accentuated sense of morality and self righteousness. One can only guess who that would be.