Judge Biggers set July 2 as the sentencing date for Dick Scruggs, his son Zach, and Sid Backstrom in a notice issued today. h/t Y’all
Although written from the corporate perspective, attorney Joan McPhee’s recent comments on modern day justice provide an abundance of food for thought about the pressure to plead guilty to avoid a potentially harsh sentence.
Behind the weekly headlines of corporate guilty pleas and multimillion-dollar corporate criminal resolutions lies a back story — little known, less well understood — that challenges the core of what those headlines pronounce. In a peculiar 21st century phenomenon, guilt or innocence has become largely beside the point for corporations defending themselves against aggressive federal prosecutors and allegations of criminal wrongdoing.
How else to explain the non sequitur in the advice that seasoned white-collar counsel often give to their Fortune 500 clients: While the evidence is strongly in the company’s favor, and there are excellent legal and constitutional defenses to the alleged misconduct, the company nevertheless should consider admitting to criminal wrongdoing and entering a plea of guilt.
McPhee also wrote about the plea agreements offered the guilty that leave others to pay the price. That’s the bottom line, IMO, to the sentencing of Scruggs, his son, and Backstrom – and Patterson, as well.
It was only after their guilty pleas that Judge Lackey admitted under oath there was no quid pro quo involved in what Balducci offered.
Balducci did not tell me, “I will give you this of-counsel position if you do this for me. ” He did not say that but that was my perception…
At that time there had been no offer of money to buy me, no money other than a position. Mr. Balducci made that pitch, he sure did.
Balducci didn’t pitch the money, Judge Lackey did and, not only did he pitch it, he named his price for a favorable ruling – and when a judge does that, bribe is not the word that comes up in the search results.
An act of extortion may occur whenever a defendant obtains the property of another, with his consent, under color of official right. A governmental agent “obtains the property of another under color of official right” whenever the governmental agent threatens to exercise discretionary authority unless the victim gives the agent money or some form of property.
Because Judge Lackey assisted the federal government “under color of official right” as a State judge, what he did was not considered a crime.
“the Hobbs Act does not apply when the National Government is the intended beneficiary of the allegedly extortionate acts. . . Thus, to the extent a plaintiff claims that extortion “under color of official right” resulted in a benefit to the government, rather than a personal benefit to the government agent, no extortion as occurred. Extortion under color of official right requires that the government agent receive personal benefit from his threats or actions.
In fact, Lackey was called a hero by some. It was Scruggs and others who were charged with the crime.
The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
Because of the aspect of consent, victims of extortion often do not realize they are being extorted, or they may realize they are being extorted but fear reporting the crime to law enforcement because they have “participated” in the offense…
…the victim of extortion…may be reluctant to report the crime out of fear that law enforcement will believe the perpetrator’s bribe story, rather than the true extortion story, and charge the victim with bribery.
These legitimate fears, however, are the very reason why extortion is such a serious crime…it causes victims to believe they are perpetrators, and by exploiting that fear, the extortionist can repeatedly and openly engage in acts of extortion with little threat of being prosecuted.
Attorney Cal Mayo in his summary following Lackey’s testimony said:
Judge Lackey’s testimony puts it in clear context. An ethical lapse clearly. Only in September that Judge Lackey made a request for the money.
Are these men guilty of something? Yes but guilty of what is a question for all to consider as these men await sentencing – transcripts of the plea hearings are filed under legal on the left sidebar.