US v. Nacchio: Replacing the Trial Judge

The panel voted to replace the trial judge, Judge Nottingham. The reasoning was not lucid. Here is the entire discussion of the issue.

• Finally, the defendant asks us to assign any new trial to a new district judge. In this Circuit, we exercise our power to do so only where we find either that the judge harbored “personal bias” or on the basis of circumstances laid out in a three-part test:  (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Mitchell v. Maynard , 80 F.3d 1433, 1448–50 (10th Cir. 1996) (quoting United States v. Sears, Roebuck & Co. , 785 F.2d 777, 780 (9th Cir. 1986)).
• We do not suggest that the assigned district judge harbored personal bias against Mr. Nacchio, but we do conclude that the factors outlined in Mitchell militate in favor of retrial before a different judge. 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. Because the government will have to retry the case from scratch either way, there is no unnecessary “waste [or] duplication” in reassigning it.

Changing the trial judge is an unusual move.  It can only be viewed as a signal of disapprobation.  Moreover, it comes with little more than a request by the defendant, asking that the court exercise its inherent authority to change the judge.  The decision has given rise to speculation about the reasons, particularly given the bad publicity suffered over recent months by the trial judge. Steve Bainbridge has noted these concerns and has invited comment from those who followed the case more closely.

While the judges no doubt knew about these issues (as do probably all judges in the circuit if not the country), the issue that did come up constantly at the trial was a sort of test of wills that arose from having two federal judges in the court room, Judge Nottingham and Herbert Stern, a former federal judge in New Jersey.  I wrote an editorial for the Denver Post on the subject early in the proceeding (In courtroom with three judges, only one with gavel matters).  Most likely it was this dynamic that caused the court to conclude that the case should go to another judge.  

I will say this, however.  The defendant's brief was an epitome of understatement on this issue, merely asking for a new judge.  The subtle stroke was, however, sufficient to alert the panel (probably already to some degree aware of the issue from press reports) and carry the day.  It was the right strategy from someone who knows how courts operate.