Former Qwest CEO Joe Nacchio can't be happy today. The Tenth Circuit Court of Appeals has granted the government's request for an en banc rehearing of his appeal. The three-judge panel that initially heard the appeal threw out Nacchio's convictions, because the trial court didn't allow his expert witness to testify. The government sought review by the full court. Its petition is here (pdf). Here's today's order (pdf), which specifies the topics they will be addressing at a September 24 hearing. The first relates to whether Nacchio had to ask the court before trial to hold a Daubert hearing and present the methodology of his expert at the hearing--or demonstrate his expert's methodology some other way before trial, such as in a brief. Next the appeals court will address whether the trial judge failed to give Nacchio the opportunity to do either. The appeals judges also ask in today's order whether it was Nacchio's burden to ask for a Daubert hearing. Their last question concerns the remedy if the judge erred in excluding the expert testimony without a hearing: Should the remedy be a new trial for Nacchio or would it be sufficient to send the case back to the trial court to hold the evidentiary hearing? Perhaps they are suggesting that had the hearing been held, the trial court might have decided the expert's methodology didn't pass Daubert muster, in which case the expert's exclusion would have been justified. That seems like a stretch to me. If the judge erroneously excluded the expert by failing to hold a hearing, you can't put the toothpaste back in the tube at this late date. I think Nacchio deserves a new trial. When the trial judge excluded the expert testimony, he ruled that the criminal rules require the same advance disclosure about the details of the expert testimony as the civil rules, and that Nacchio had not complied with the requirements. The panel of three judges, in overturning his conviction, said the criminal and civil rules are different and that Nacchio had complied with the criminal rule. It also said the judge was wrong to exclude the testimony based on briefs without a hearing where the defense could present evidence. The panel noted:

The right of a defendant to call witnesses is crucial for testing the prosecution's case and defeating the charges against him. Indeed, the "right to present a defense . . . is a fundamental element of due process of law."

Now, 9 of the 12 appeals court judges will decide whether Nacchio's conviction stands or he gets a new trial. (Three recused themselves earlier.) The three judges from the original panel will remain for the rehearing. So that's a total of six new judges on the case. En banc rehearings are not frequently granted. In order to get a review by all judges on the court, the government must show that "such consideration is necessary to secure or maintain uniformity of the court's decisions" or that "the proceeding involves a question of exceptional importance." The government's petition relied heavily on the second ground, that the question is one of exceptional importance.