“Humanity is governed by minorities, seldom or never by majorities. It suppresses its feelings and its beliefs and follows the handful that makes the most noise. Sometimes the noisy handful is right, sometimes wrong, but no matter, the crowd follows it.” (Mark Twain)
Yesterday, Patsy Brumfield broke the story of Zach Scruggs’ Motion to Vacate and today she followed with more details in a post on her blog at NEMS360.com. Patsy found “two elements… especially interesting”. The element at the top of her list is the government’s conduct, the subject of the ongoing SLABBED conversation about “prosecutorial decision making” and two related posts specific to the subject: A mind is like a parachute. If it doesn’t open, you’re f#@%*d! and Why do people confess to crimes they didn’t commit.
Patsy’s story set off a lot of “noise”. However, what is needed – and what justice requires – is less noise about Zach and his money and more thoughtful conversation about the content and issues raised in the Motion to Vacate and the 393 pages of the Memorandum of Authorities in Support and Exhibits.
Patsy summarized her interest:
“the government’s early story to the court that Zach Scruggs knew about an alleged scheme to bribe another judge was not true. A magistrate judge and Joey Langston, then a Booneville attorney who pleaded guilty in that scheme, say so in statements under oath”.
Now-retired prosecutor Tom Dawson, in his book “King of Torts,” says that story to the court, that Langston was going to testify to that effect, greatly increased Zach Scruggs’ peril of long prison time and deep financial consequences, should a jury have convicted him of being part of the attempted bribery of Circuit Judge Henry Lackey of Calhoun City.
That pressure on Zach Scruggs was key to his guilty plea, most informed observers and Dawson say. But we don’t learn about the sworn statements contradicting that story until this new document notes the affidavits….
Patsy then adds, “Without the ‘other plot’ story, you’ve got to wonder if Judge Neal Biggers would have agreed with the government to sentence Zach Scruggs to probation, rather than what he got, 14 months in prison” and I do wonder, particularly in light of his Order dismissing USA v Weiner (November 2009).
The agents repeatedly played the roles of inducers in the present case. Their actions were nothing less than blatant, though unsuccessful, attempts to manufacture federal jurisdiction and are reminiscent of the behavior of the agents in one of the seminal cases on manufactured jurisdiction.
Compare that situation to this excerpt from Zach’s Memorandum:
“Although the Government never charged Movant with any crime in the DeLaughter /Wilson case the Government proposed to introduce testimony from Mr. Langston about the Delaughter / Wilson case in Movant’s trial in the Lackey / Jones case. Movant moved to exclude such testimony as irrelevant to him, prejudicial to him, and in any case unfounded. See Motion to Exclude, D.E. 176.
In opposition, the Government assured this Court:
The testimony at trial from Mr. Langston would be brief, about what you’ve heard from me this morning. That testimony would also implicate Zach Scruggs. Joey Langston is prepared to testify that Zach Scruggs was fully aware of what was going on in the Wilson case. Exh. “B”, Hearing Tr., 2/21/2008 at 21:15:20.
This Court denied Movant’s motion to exclude the evidence and explicitly relied on the Government’s representation, stating in the Court’s Order that “the evidence … implicates defendants Richard Scruggs and Zachary Scruggs.” Order, D.E. 134 at 1. Further, the Court held that “the government has revealed that the evidence implicates Zachary Scruggs…” Id., at 2 n.1. See also id., at 3 (similar).”
If that doesn’t sicken you, see if you have the stomach for this:
Through all this, Judge Lackey admits that Balducci never offered him any money for resolving the case favorably to the Scruggs Katrina Group (“SKG”). See Exh. “N,” at 76-80. Thus, on the undisputed facts, it was the Government, not the defendants, that “repeatedly played the role of inducers,” and transformed this case from an incident of earwigging (a non-crime under Skilling) to a demand for money…
But even then, Movant had absolutely no connection to or knowledge of the Government’s bribery scheme. The proof is documentary. While Balducci was unaware that he was on camera, he promised Judge Lackey that Dick Scruggs did not know about any of this and that he would never know of it. Balducci repeatedly made this point: “this is just between you and me…This is just between me and you. …There ain’t another soul in the world that knows about this, ok?” Exh. “R”, 9/27/2007 Recording Tr. at 8-9.
Even when Judge Lackey speculated to the contrary, “I would think Mr. Scruggs would have to know something,” Balducci disabused him of the notion. Id. Likewise, the wiretaps show Steve Patterson telling Balducci that P.L. Blake, who was supposedly serving as an intermediary for Dick Scruggs, himself did not know of the purpose of the $40,000 that he would later ask Mr. Scruggs to pay to Mr. Balducci. Exh. “S”, 9/27/2007 Recording Tr. at 2-3. Of course, Movant was in even less of a position to know about the plot that Judge Lackey and the Government had hatched since Movant had no involvement with the money.
Only when Balducci was arrested and submitted to the Government’s compulsion did his story change.12 The Government thus not only created the crime, they also then wove a larger and larger net, until they caught their pre-chosen prey.
Still feeling OK, then try a glimpse at what has happened since to the government’s “pre-chosen prey” as reported in this excerpt from the soon-to-be-released Fall of the House of Zeus (Exhibit 8):
In the spring of 2009, Scruggs was brought to the Lafayette County Jail in Oxford – where he came within sight of his son but was unable to speak with him – to appear before a federal grand jury. But his testimony failed to win an immediate indictment of his old associate. In fact, the prosecutors were disturbed over the paucity of Scruggs’s remarks. His session with the grand jury was so unproductive that it lasted only fifteen minutes.
He was kept in a windowless cell in Oxford for two months as talks continued between prosecutors and his attorneys.
One of the most remarkable statements in their dialogue came from Bob Norman. It occurred in a conference room at the U.S. Attorney’s Office in late March, almost exactly two years after Tim Balducci had approached Judge Lackey. Representing the government were Norman, his associate Chad Lamar, and Bill Delaney, Scruggs was accompanied by two lawyers from John Keker’s office, Jan Little and Brook Dooley.
At the beginning of the conversation, Norman tried to establish a convivial mood by remarking that the federal government had come to realize that none of the members of the Scruggs Law Firm had originally set out to bribe Judge Lackey.
Scruggs was astonished by the statement. Across the conference table, it seemed to him that Delaney had grown uncomfortable, for Norman’s remark carried an implication that the government investigation had turned an unethical overture to Judge Lackey into a crime that reached monstrous proportions.
“We tried to tell you that,” Scruggs said. That had been a’t the heart of Scruggs’s explanation of the Crime: That Balducci had been instructed to do nothing that would break the law in his ear-wigging conversation with Judge Lackey. That Scruggs had not known 0f” the payments to the judge until they had already been made in his name hy Balducci. Even as he had pleaded guilty, Scruggs insisted in his remarks before the court “there was no intent to bribe the judge; it was an intent to earwig the judge.
But Scruggs had acknowledged, “I joined the conspiracy later in the game.”
More than a month later, Scruggs was returned to prison in Ashland. He spent his sixty-third birthday in a solitary cell…
By any name what happened was wrong but the government’s wrong shows two wrongs don’t make a right.
Neither can justice at this point undo the collateral damage inflicted on victims of Katrina’s insurance war when the “just-us justice” of North Mississippi trickled down to the Southern District Mississippi Federal Court and all attorneys of the SKG/KLG member firms were disqualified.
H/t to Bellesouth for assisting with the research for this post.