Zach and the “noise makers” – the Zach Scruggs’ Motion to Vacate Conviction

“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.

23 thoughts on “Zach and the “noise makers” – the Zach Scruggs’ Motion to Vacate Conviction”

  1. Oh so very interesting. De ja vu “FOLO” and “NMissCommentor”. Ashton O’Dwyer has a Comment: Dickie, Zach, Joey and “former judge” Bobby DeLaughter are all PIMPS compared to Stanwood Duval and Calvin Fayard. WHERE IS THE U.S. DEPARTMENT OF “INJUSTICE”?

  2. Despite certain opinions I might hold about Ashton O’Dwyer, he fought the charges against him like a man who had done nothing wrong. I think O’Dwyer might even agree with me when I say that if you are not guilty, you fight the charges, even if that means getting in the witness box and explaining why you are not guilty. (See also United States v. Loeb and Molaison).

  3. To “Sick Puppy”: The point is that whatever the heck Dickie, et al may or may not have done, which I encourage them to FIGHT like dogs, PALE IN SIGNIFICANCE TO THE FEDERAL CRIMES WHICH WERE COMMITTED AND WHICH CONTINUE TO BE COMMITTED BY DUVAL AND FAYARD HERE IN LOUISIANA. Why the emphasis on the penny-ante BULLSHIT that happened in Mississloppy, when the REAL crimes here in Louseyanna go unprosecuted? Somethings totally FUCKED UP at the U.S. Department of “Injustice” and with the Federal Bureau of Constipation. Ashton O’Dwyer.

  4. This really is a great post. Lackey should be ashamed of himself sabotaging his friend because he thought Scruggs was a monster. Who’s the monster now?

  5. A prosecutor with political ambition is a very dangerous person. The Scruggs related prosecutions always smelled political and looked like emtrapment. I hope Zach is fully vindicated, and the bar is FORCED to reinstate his law license. Dickie did not deserve prison, and Sid Backstrom was collateral damage in the zeal to prosecute Dickie. I am glad to hear that Sid is now free, but his life has been shattered nevertheless. I always believed going after Zach was a cheap shot to soften up Dickie, and now that is apparently beginning to come out.

    Unfortunately, justice is not blind and juries do not presume a defendant is innocent until proven guilty beyond doubt. Innocent people plead guilty to crimes not committed every day, because the prosecutors pile bogus charges so high, that no person can risk being found guilty. That is why so few federal criminal cases actually go to trial. Unfortunately, Grand Juries almost always blindly follow the requests of prosecutors, and do not ask questions and think about what they are doing when they agree to indict.

  6. When I saw Patsy’s story and the reaction across the blogosphere I sighed and shook my head. Dick Scruggs has been an albatross and if it had been up to me we would have narrowed our coverage to the bogus tie into the policyholder litigation here on the coast and the attempted revising of history as it regarded Jim Hood’s role in the settlement, which was misrepresented on the old Folo blog and Yall Politics to this day. That said Nowdy has been persistent on this topic and has made some good points. Since the lynch mob has disbanded she is now being heard above the shrill shouting.

    Regarding the policyholder litigation what happened in North Mississippi came after Scruggs’ settled his cases with State Farm and it was fight over fees by the lawyers. There is no tie into what State Farm did down here though State Farm was able to exploit it none the less with the help of the Scruggs lynch mob.

    That brings me to Ashton’s point because it has more than a kernal of truth in it. Dick Scruggs was a marked man the day he moved to Oxford. There are alot of folks up there that fancy themselves as southern bluebloods that were no doubt were burned up by the associations with Ole Miss and the fancy office on the square.

    The same bunch obviously didn’t give a shit about any of the collateral damage they would cause in their zeal to take him out. Power families doing battle while everyone else gets pissed on is a familar theme in this state (and the south) and it explains why we’re last in most every quality of life measure. One only need travel to the Mississippi delta to see the impacts at their worst where the vast majority of the populace lives in abject poverty as result of the past (and current) actions of a few pigs at the trough.

    Dick Scruggs’ brand of corruption is small potatos in the scheme of things. That said he put a mighty big target on himself though due to his love of the publicity he could generate.

    In the almost 3 years Nowdy and I have blogged together I’ve had the pleasure of chatting with several folks that had ring side seats as everything unfolded from Katrina’s landfall to the take out of Dick Scruggs. Dick Scruggs wasn’t clean, far from it in fact. His ego prevented him from seeing the ambush that was laid as his own tactics were used against him. He was not a good lawyer in his own right though he did have sense to hire excellent lawyers for his teams. He had a talent for fee stripping some of those same folks on the back end and that also made him enemies.

    Zach was a neophyte in the Katrina litigation and blood was the only reason he had a seat at the Katrina table. Hindsight reveals he would have been far better served gaining experience at a firm not run by his Dad. Can’t turn that clock back.

    From my perspective Zach has a problem. He pleaded guilty as did his Dad. You can’t undo that IMHO. Sock is right, he should have fought the charges. If he and his Dad had, chances are they would be free or close to it today given the recent Supreme Court decision on honest services.

    All that said, when push came to shove Dick Scruggs paid a bribe, even if he was entrapped. I’ll never be convinced it wasn’t the first time.

    Anita Lee blogged on this and her take mirrors mine in many respects. Our blue bloods on the coast trace back 136 years before them cats in North Mississippi so I reckon it is only natural we’d see things a different way. How we long for the good old days of being part of Florida…..

    sop

  7. Well, as some of you may know I have been trying to communicate with NMC et al. over at his place. Evidently I hit them with the facts that they did not like. It has resorted to NMC slandering me. So, we just have a Bellesouth Welcome To Slabbed because I WILL sue him because he is lying about me.

  8. I just found this article online from the MS Law Journal. It is a history of earwigging. It is quite thorough and well worth reading if not just for this:

    Yet, even in Mississippi, the only state to prohibit earwigging, it is a
    rarely used term. It appears that only four cases of record have mentioned the term as itrelates to improper ex parte communication.10 As the term relates to the Scruggs case, earwigging was only mentioned once. This essay notes the reference of the term during the Scruggs trial and examines the probable historical development of how earwigging became a prohibited act in Mississippi.

    and

    VII. MISSISSIPPI CASES AND RELATED RULES
    There are only four cases of record in Mississippi that reference earwigging.102
    Furthermore, each case only involved an allegation of earwigging. In those cases, the
    courts were hesitant to entertain allegations of earwigging, resolving only in one case to
    inform the person alleging the complaint that the proper forum for an ethics complaint is
    specified in Rule 8 of the Mississippi Rules of Discipline.103 The four cases are also
    relatively uninformative. In Boyd v. Mississippi, a murder suspect, who pled guilty to
    murder, sought post-conviction relief for ineffective assistance of counsel, claiming his
    prosecutor had earwigged the circuit judge.104 The court found the claim to be without
    merit and dismissed the claim.105 In McNeil v. Hester, a plaintiff brought a motion
    alleging that the defendant

  9. Mississippi…earwigging…where the literary is the legal…don’t you just love it…it makes me think of Eudora Welty

  10. I don’t think that Scruggs Senior’s type of corruption is small potatoes. It is very much at the core of government corruption, because it involves the government directly in the corruption process.

    From the Scruggs point of view prior to the hammer coming down the case looked something like this I gather: Scruggs Senior tells Balducci to go talk to his friend and maybe dangle a little a little (Judge Nomination) bait. Judge plays footsie, but comes back with: “I want money.” Scruggs Senior says: “OK”. Probably not happy about the additional investment in cash, but has a high enough return on investment to be worth his while.

    Zach, who up to this point had all the advantages of his famous father, and was willing to use those advantages, gets caught up in the following imbroglio: rightly or wrongly is not entirely clear to me.

    At this point, since they are guilty, the legal burden works against them. Zach has a very uphill battle.

    1. From the Scruggs point of view prior to the hammer coming down the case looked something like this I gather: Scruggs Senior tells Balducci to go talk to his friend and maybe dangle a little a little (Judge Nomination) bait.

      There is no evidence Scruggs encouraged Balducci to speak with Judge Lackey. In fact the events as we know them indicate the opposite in fact.

      Again, based on what is publicly known it appears Dick Scruggs did not know about Balducci/Lackey until after money was requested by Lackey.

      The initial offer was for an of counsel position at Balducci’s law firm. Considering he was barely scraping by such offer was essentially worthless.

      Compared to what is going on in the Federal Judiciary in NOLA Scruggs is small potatos.

      Sop

  11. Also, I am only referring to Scruggs I and Zach, but yes, Dickie didn’t know anything about Lackey until he secured the funds.

  12. The term “earwigging” as a euphemism for corruptly influencing a member of the judiciary, or attempting to do so, or conspiring with others to do so, reminds me of a term used in the U.S. Army infantry during the Vietnam era, namely “buttstroking”, which was a polite way of saying breaking you jaw, knocking all of your teeth out, and fracturing your skull so that your brains spill out on the ground. Ashton O’Dwyer.

  13. A very careful parsing of the various goings on could come to that conclusion: particularly if you were still at the “innocent until proven guilty” phase, and you were his defense lawyer.

    But since they all plead quilty, the case remains somewhat undeveloped because it never went to trial. They all pled guilty.

    If you pull back and look at the broader range of Sr. Scruggs’ activities, there is an awful lot going on there. I find the interpretation that he knew nothing of what was going on, and then as a complete innocent is compelled to bribe a judge as highly unlikely.

    Zach’s culpability to some degree then would involve a determination of whether he was just dead-weight receiving a paycheck, or was an active participant. A rather similar question as was raised with the Madoff family.

  14. No question there was a point he knew Balducci was speaking on his behalf with Lackey. Like I said they saw him coming from a mile away but lets call the rat fuck for what it is.

    Team Scruggs was steamrolled in the court of public opinion and in the courtroom by a federal prosecutor with evidently no problem cutting a corner or two before he does the book deal. He took the plea as the best alternative when they should have fought. Hindsight is 20/20.

    Without doubt the justice system is better off without Dick Scruggs buying his way through. The problems the case highlighted are only the tip of the iceberg though.

    sop

  15. The government bluffed its way into this case when it didn’t have “standing” – there were no federal funds involved (per recent 5th Circuit ruling) – and, at that time, “earwigging” was not a crime under State law.

    Sop’s right. What else do you call it but a “rat fuck” when the federal government creates a crime because it otherwise lacks both jurisdiction and a crime?

    Granted, when Balducci needed money – the $40,000 and the additional $10,000 he asked for at the behest of the FBI, Scruggs gave him the money. Many have asked, “what was he thinking” and, as Russell pointed out, without a trial “the case remains somewhat undeveloped”.

    Consequently, we don’t know what Scruggs was thinking. In fact, all we know for certain is that every trial motion the Scruggs defendants filed was denied, with the exception of one or two on “technical” matters such as the jury survey.

    But, should we not also question what is it that others have been thinking when they shower honors on the prosecutors and Judge Lackey when “the case remains somewhat undeveloped” and given that a plea deal was the “best alternative”.

    1. It doesn’t matter what Dick Scruggs was thinking Nowdy as he tried to pay off a judge and that speaks for itself. And once he did that, the fact that he was rat fucked mattered not because if he were honest he never would have agreed to pay Judge Lackey and thus could not have been charged with any crime.

      sop

  16. My point, such as it was Sop, is the denial of the motions really forced the plea deal and left the case “undeveloped”.

  17. I find it kind of heart-warming myself that Tom Dawson’s book proves that they lied to the court. But egregious in that they lied to the court and because of those lies those motions were denied and as Nowdy said, “left the case “undeveloped.”

    Are we to sit here and believe that prosecutors with all of their power can lie to the Court in order to secure prosecution?

  18. Also, I am having big problems with “corruptly influencing a judge.” Now, I do see how the prosecutors have done that with all their might, but to say in civil litigations where there is a court record, I wonder, cannot a judge of all people know the differnce?” I mean really. Give me a break. You’d think judges are just blow-up manikens without a brain. How can you in a civil case, corrupt a judge by talking to him about a case without the other lawyer present? And you don’t think the judge knows that? And you think the lawyer can expect the judge just to take him for his word? But I absolutely believe that prosecutors will lie in criminal cases when the judge expects much more of them because they ARE THE LAW.

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