Local lawyer can’t quit acquitting
March 18-24, 2019
By Becca Bona
Most federal cases in this country never make it to trial. In 2017 alone, of the 66,873 total cases, 97.2 percent were convicted after entry of a guilty plea by the defendant, and only 2.8 percent ever proceeded to trial.
In Arkansas the numbers mirror the ones above, in both the Eastern and Western districts. At the end of 2018, however, one local attorney realized that she had taken not one, but two federal cases to jury trial in one year. While the trials were different – there were some similarities. Each jury trial included two defendants on trial together as well as one local attorney Nicki Nicolo who represented one of the defendants in both trials.
What’s more? Both trials ended in acquittals of all defendants.
Nicki Nicolo’s journey to the law
Nicolo always knew she wanted to be a criminal defense attorney. Her mentor, Attorney Sam Perroni, had a huge role to play in that.
She knew Sam Perroni from a very young age and she recounts with fondness him “holding her in his arms as an infant.” She was fascinated with the law, the attorneys, and the system.
“I grew up with this passion for the law, representing the underdogs, representing the people that nobody cares about,” she said.
When it came time to apply to law school, Nicolo landed at Southern Methodist University, Dedman School of Law in Dallas. During her time there she was able to gain hands-on experience by participating in the SMU Criminal Defense Clinic which is a program that works with the Dallas Public Defender’s office. Law students become licensed student attorneys and defend misdemeanor cases in court.
This gives students the opportunity to work through the discovery process, talk with their mentor attorney (assigned to them through the program), negotiate with the prosecution and even proceed to trial if necessary. “That gives you a lot of confidence as a law student,” she added.
Nicolo never planned on coming back to the area but some medical issues landed her in Little Rock at the UA Little Rock William H. Bowen School of Law as a visiting student for her final year of school. It was there she had the opportunity to take a law school class taught by Sam Perroni.
“I became his law clerk,” she remembered, and she was able to get her feet wet with federal work.
However, finding a job after obtaining her law degree proved difficult.
“When I first became a lawyer, I couldn’t even find a job. I was literally cleaning toilets on foreclosed houses” she said. “I was doing anything to make money.”
Luckily, the owner of Robertson Law Firm (now Robertson, Oswalt & Associates) – Bonnie Robertson – took a chance on Nicolo.
“[Bonnie] is awesome. She taught me a lot about how to practice family law,” Nicolo recalled. The firm had locations in North Little Rock, Heber Springs and Benton, and Nicolo headed up the Heber Springs location for a time.
After gaining experience with the firm, Nicolo felt she was ready to go out on her own, and has been practicing law solo in Downtown North Little Rock since 2011. She was even able to bring Sam Perroni on as of counsel at her firm. He has since retired, but occasionally advises Nicolo on federal cases.
Working cases on the federal level
Nicolo claims her bread and butter is family law. How then, does she take on federal criminal cases as well? This is due, in large part, to the Criminal Justice Act (CJA).
It’s common knowledge that those federally charged who don’t have the finances to obtain counsel will be appointed a federal public defender.
There are instances, however, when cases need to be handled by another attorney outside of the Defender’s office – either because the public defender has a conflict of interest, or they have too large of a caseload, for instance.
That’s when the CJA comes into play and CJA panel attorneys are assigned cases. The attorneys on the panel go through a competitive approval process and panel attorneys serve three year terms.
“It’s fairly small, not everybody gets on the panel,” Nicolo explained. “But every three years, you have to apply. This is my second round of three years.”
These panelists are compensated for their time, but not at the level they would if it was a case they had taken on in private practice.
“I say it’s a little bit of pro bono because you’re not getting paid what you would on a private level but you’re still getting paid some and gain the experience that you could never learn otherwise,” she added.
Currently, Nicolo has around fifteen federal cases she’s working on through the panel. After looking back over her work in 2018, however, two cases stand out: those two federal cases mentioned above that went to jury trial – both ending up in double acquittals which Nicolo believes has never been done before in U.S. History.
“I’m not saying there’s something special about me, I’m saying this has not been done in the federal system,” explained Nicolo. “There have not been two federal double acquittals in one year with the same attorney involved. The numbers are already flopped to where it’s hard enough to ever get an acquittal, more less have two defendants stand trial together on two separate cases in one year and everyone get acquitted.”
To note, Nicolo only represented one defendant on each particular case that went to trial with the other defendant.
One of the reasons why federal cases don’t often make it to trial, according to Nicolo, is that defendants don’t want to take the risk of long term imprisonment that sometimes goes along with not taking a plea bargain.
“Most defendants want some type of control over the outcome of the case,” she explained. “And sometimes the best option for obtaining a lighter sentence involves entering a guilty plea without a trial.”
In the federal system, judges are responsible for all sentencing – and there is no option for parole.
“The judge takes into consideration what the government says, what the defense says, what the federal sentencing guidelines say. It’s all based on the offense, but it’s still at the judge’s discretion. I think that’s a scary thing, it’s terrifying for my clients” she said.
Just as sentencing in the federal system is a bit different than the state system, so is trying a case. For instance, not all of the materials are disclosed well ahead of time, including the witnesses that the government intends to call as witnesses.
“That’s designed to protect victims and protect the people that are going to testify, however, for purposes of preparing for trial it makes the process very stressful for the defense” said Nicolo.
Plus, the discovery process is very different – it’s very voluminous, and you can’t keep all of it in your office. Nicolo has a photographic memory, which she uses to her advantage when she heads over to the government’s office to pour through boxes of paperwork.
“I spend probably much more time than other people over there […] but I want to make sure I absorb the material to properly prepare a defense” she explained.
At the end of the day, however, Nicolo says it’s important to have a great relationship with your client.
“I try to do that so they’re kind of involved in the discovery process as much as possible. And then they can give you some insight into who may be possibly testifying against them. But there’s a lot of pieces to put together – the whole process is like a puzzle.”
A lot can happen during a federal case. Nicolo’s best advice she’s received (from Sam Perroni, of course) is to “stick with your plan.” You have to be quick thinking on your feet – and she lives for the exhilaration.
Nicolo plans to continue to take federal cases to trial. Her main inspiration is to protect the rights of the individuals, as she said, “The point is making sure the government or the state can prove their case, it’s not just for the guilty people, it’s for the innocent people – it’s for everybody. It’s making sure that individual constitutional rights are not trampled on.”
In her spare time, Nicolo likes to play sand volleyball, hike, and enjoy the Natural State. She doesn’t think she’d be where she is without it: “I like [Arkansas]. It’s given me an opportunity, I don’t know if I could’ve branched out so quickly into private practice elsewhere.”
Keep a lookout for Attorney Nicolo as she keeps on fighting the good fight.
“I’m not saying there’s something special about me, I’m saying this has not been done in the federal system,” explained Nicolo. “There have not been two federal double acquittals in one year with the same attorney involved.” (Photo provided)