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.

Since I haven't talked to Jeff Smith in months, I assume he took that line from something I wrote, but I can't figure out where.

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.