Corporate Governance

US v. Nacchio: Ineffective Assistance of Counsel?

By J. Robert Brown

Judge Henry wrote a separate dissent and suggested that the case would be back, with the courts having to resolve whether Nacchio received ineffective assistance of counsel.  As he noted:

• And, though I fear for today’s result, I do not believe this case is over. If “the district judge made clear his need for some proffer of data or literature underlying the expert’s assumptions and conclusions, [and] the defense offered practically nothing, despite repeated opportunities to do so,” Maj. Op. at 35, (citing United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995)), then defense counsel behaved inexplicably, which is to say they performed below the level expected of competent counsel. That means we will most likely see these issues return in the form of a § 2255 claim for ineffective assistance of counsel. The fact that a possibly meritorious § 2255 claim is waiting has no direct effect on what we do here now. Nonetheless, the majority’s scenario, which depends on a holding that counsel’s ineffectiveness possibly rose to a level of constitutional infirmity, suggests to me an alternative explanation: the district court simply was not clear, and it abused its discretion in excluding Mr. Nacchio’s expert.

Whatever the merits of the idea, Judge Henry predicates his views on the belief that counsel for Nacchio "behaved inexplicably" and, potentially, below the level of competent counsel. 

This is a hard argument to swallow.  Put aside that Nacchio received talented and skilled representation by five lawyers who seemed prepared at every turn.  There is also the possibility that the failure to submit additional information on methodology or request a hearing was actually beneficial to the defendant.  Had these things been done, its possible the evidence would still have been excluded, only this time on a more complete record that would have been harder to reverse. 

The actions of counsel at trial came within one vote of a new trial.  This hardly smacks of ineffective assistance.

The primary materials on this case have been posted at the DU Corporate Governance web site.

Full post as published by The Race to the Bottom on February 26, 2009 (boomark / email).