Posted: May 31, 2012 4:21 PM
CINCINNATI (AP) - Attorney David Nolan barely had two sentences of his argument out Thursday about why the conviction of the woman in prison for trying to extort University of Louisville basketball coach Rick Pitino should be overturned when a three-judge appeals panel stopped him.
"Let's get off on the right foot," said Judge Boyce Martin of the U.S. 6th Circuit Court of Appeals.
The judges, though, made it clear from that point forward that Nolan did not continue on the right foot: They scolded, warned and corrected Nolan repeatedly as he argued that 52-year-old Karen Sypher's trial attorney, James Earhart of Louisville, was constitutionally deficient in his representation at trial. Multiple times the panel told Nolan that his assertions weren't backed by evidence in the trial record and warned him that, by raising the issue of Earhart's performance now, he would waive Sypher's ability to bring the claim up in a later proceeding.
Late in the hearing, Judge Martha Craig Daughtrey became frustrated.
"This appears to be a waste of everybody's time," Daughtrey said.
In 2010, a jury convicted Sypher of extortion, lying to the FBI and retaliation against a witness. Prosecutors said she sought millions in cash, cars and a house from Pitino to stay quiet about a tryst in a Louisville restaurant. Sypher later filed a police report accusing the coach of raping her, an allegation Louisville police, the Jefferson County Commonwealth's Attorney and FBI each found not credible.
Sypher is serving a seven-year sentence at a federal prison in Marianna, Fla.
Several of Sypher's relatives attended the hearing but declined comment afterward. Nolan, though, appeared upbeat, telling reporters the judges seem to grasp the issues.
"They decided to hear oral arguments, which is positive," Nolan said.
The panel did not indicate when a ruling would be forthcoming.
Nolan's argument focused mainly on the performance of Earhart, who rested the defense at trial without calling any witnesses or presenting any evidence. Nolan described his cross-examination of prosecution witnesses as "trivial" and said the attorney told Sypher multiple witnesses would testify on her behalf.
"Is that in the record?" Daughtrey asked, a question she would repeat in several forms over the next few minutes. "We can't consider that as evidence. And you can't argue that today as a basis on which to overturn the conviction."
Nolan told the panel the case should be sent back to the trial court for, at least, a hearing on whether Sypher deserves a new trial. Nolan then told the court again that Earhart didn't call any witnesses. Nolan also made references to private conversations between Sypher and Earhart about strategy.
Daughtrey grew frustrated that Nolan wouldn't say what was in the trial record.
"Could you just say yes or no?" Daughtrey asked.
"Because of an ineffective counsel, there were no witnesses for Ms. Sypher," Nolan said. "I don't want to mislead you."
"You're not misleading me, except that you won't give me a yes or no answer," Daughtrey replied.
Martin told Nolan the appeals court can consider only what is in the trial record in reviewing the case.
Assistant U.S. Attorney Candace Hill told the panel that Earhart did a solid job at trial and the conviction should be upheld.
"There was no showing of misconduct," Hill said.
Martin noted that the 30-plus minutes of arguments Thursday rarely raised the typical issues on appeal, mainly any error by the judge at trial.
In her appeal briefs, Sypher claimed a broad conspiracy involving Pitino, the federal trial judge and Earhart to ensure she would be convicted. Her attorneys have claimed that U.S. District Judge Charles Simpson III, a University of Louisville alumnus, was biased against Sypher because of his connection to the school, and that jurors were afraid to harm the school's image after a new riverfront basketball arena, the Yum! Center, opened in Louisville.
In testimony at Sypher's trial, Pitino, who has reached the NCAA Final Four at three different schools, said he had sex with Sypher in an empty Louisville restaurant after she whispered to him and unzipped his pants. Pitino said the sex lasted 15 seconds and was "unfortunate."
Nearly all the conspiracy claims have been previously rejected by law enforcement, including Louisville police and the FBI, and Simpson, who handled similar claims after Sypher's conviction. Simpson referred to Sypher's case as one motivated by "sheer greed."
(Copyright 2012 The Associated Press. All rights reserved.)