In the post above, I discussed the motion for bail pending appeal filed by Joe Nacchio yesterday. As I wrote, the test for bail pending appeal is set by statute.

A defendant is entitled to bail pending appeal if he is not a flight or safety risk, the appeal is not for purposes of delay, and he will raise a “substantial question” on appeal which, if decided in his favor, will likely result in reversal of the conviction or a new trial.

In the Tenth Circuit, the Court has interpreted “substantial question” to mean:

…. a “close” question or one that very well could be decided the other way.'”

As I wrote when Scooter Libby was seeking bond pending appeal,

It’s not necessary that Judge Walton believe he was wrong, or that reversal is probable, only that the issue presents a close question or one that could have been decided the other way.

Jeff Smith in the Rocky Mountain News today writes:

Denver defense attorney Jeralyn Merritt said last week she didn’t think U.S. District Judge Edward Nottingham would let Nacchio out during appeal. That would require Nottingham to acknowledge he did something wrong, she said.

I honestly don’t recall predicting what Judge Nottingham would do on an appeal bond and after reading the excellent defense motion filed yesterday, if I did say or write it, I’ve changed my mind. It’s an open question. Nor do I recall saying Nottingham would have to admit doing something wrong for Nacchio to get an appeal bond. He’d have to admit other courts might have reached a different conclusion. [Update: I have talked to Jeff since the article ran and he explained that he interpreted this as my position from notes of Sara Burnett, who is listed as a contributor to the article and whom I did speak with last week. His RMN article set for Friday, 7/27, will contain a direct quote from me which should clear up any confusion.] Other local lawyers weighed in with the Denver Post last week on the issue of bail pending appeal:

[Rick] Kornfeld said it’s unlikely Nacchio will be allowed to remain free on bail during an appeal. “What you’re really saying is, ‘Judge, I’m asking you to Monday-morning quarterback yourself and to agree with me that you screwed up,”‘ he said. ….”My guess is Judge Nottingham – a super-talented, very thoughtful judge who follows the law – is not going to find that one or more of those [statutory factors] apply,” said Goldberg, a partner at Holland & Hart focusing on white-collar law.

So, for the record, I am not predicting how Judge Nottingham will rule on bail pending appeal for Joe Nacchio and I don’t think the standard is that the Judge has to admit he made a mistake, only that there is a substantial issue other courts might have decided the other way, and that it’s likely if they did rule the other way, Nacchio’s conviction would be reversed or sent back for a new trial. [Cross-posted at]