Flipping the wig on “whiggocracies”

“To understand the world, you must first understand a place like Mississippi”

When I need words to explain something “Mississippi”, I reach for the last work of the late (and great) Willie Morris, “My Mississippi” – and what words I find! Some, such as those of Faulkner, come as quotes from other Mississippi writers.  The most telling, however, are those words that show the depth of this understanding of this place he called “home”:

“It has been remarked that Mississippi has produced so many fine writers because the state is such a complicated place that much interpretation is required.”

Victoria Pynchon’s recent piece on Mississippi earwigging and Zach Scruggs was the impetus for my calling on Willie.  SLABBED considers Pynchon a friend.  In fact, we hold her  in such regard that the link to her “Settle it Now” Negotion Blog has been a constant on our blogroll and will remain so despite the “h” she inserted in “earwigging” or her need for “interpretation” of  the practice in this “complicated place”.

Here in this “complicated place”, perhaps because so many once lacked the skills to read and write, “earwigging” is not a reflection of a “whiggocracie” but is, instead, an art — a form of the storytelling that, like the run-on sentences often found in “our literature…and music” that boggies all night long — that doesn’t know when to stop.  Yet, it too, was grown “directly out of land and the sense of place – the mark of the land… the love of narrative:

One sees this at some times directly and at other times through a vivid concreteness and emphasis on detail, as in the stories we love to tell…We are talkers.  We talk about ourselves, each other, our ancestors, events, the funny and quirky and bizarre things people do — true stories, more or less, and the richer and more plentiful the detail, the better…Like storytelling, art of whatever form plays a communal role: it draws people together, helps them understand themselves and their common humanity…”

Pynchon’s article focuses on Zach Scruggs’ Motion to Vacate his conviction for Misprision of a Felony, his failure to report the earwigging of Judge Lackey in the case of Jones v Scruggs.  However, in a March 2008 post, Earwigging — A Mississippi Tradition, Steve Eugster wrote of the earwigging by the Plaintiff’s attorney [Grady Tollison] in the Jones case:

So in the Scruggs Litigation what do we have in relation to this historical phenomenon of an usual Mississippi tradition – earwigging?

It seems we may have a situation where a trial judge engaged in earwigging with the attorney(s) for the plaintiff in the Jones v. Scruggs case. Evidence of the earwigging is found in the fact of the very unusual ore tenus motion whereby the judge entered an order sealing the file of the case from all the world open to be unsealed in the sole discretion of the attorney who filed the case.

Next we have the same judge again engaging in earwigging with a person who was a friend of one of the defendants in the action about the case but only such that the judge might know that all the defendant might want in the case was that it be sent to arbitration as provided in the agreement between the parties.

An earwig is a insect, a bug – the earwig – hence, no “h” and a term “earwigging” that translates from legal-speak into the common expression “putting a bug in your ear” and the English practice of  judges wearing wigs that were often home to bugs.

Eugster’s post on his Wikiscruggs blogspot continues:

…after several days, the judge decides earwigging he had wrongfully engaged in violation of a court rule could lead to something better. An effort to use his friend to bring down a lawyer who was not liked by a segment of the Mississippi bar and judicial system and representatives of the Office of the United States Attorney.

It also may have been a contributing factor that the judge knew his wrongful earwigging could lead to something against him. He was a member of the Mississippi Commission on Judicial Performance. The Commission had recently been involved in disciplinary actions where the judge disciplined had engaged in ex parte contact with attorneys and parties.

The judge becomes an agent of the U.S. Attorney. In agreeing to do so, the judge agrees that he will violate the authority of his office, State Judges are not elected act as agents for the government of the united states. He also violates the principles of separation of power between the executive, judicial, and legislative branches of government. And, significantly, on his own he decides it is permissible for him to violate numerous provisions of the Mississippi Code of Judicial Conduct.

Making matters even worse, the judge in question was and is a member of the Mississippi Commission on Judicial Performance.

Committed as an agent for the federal government, the judge begins to use his friend to capture the target, Richard Scruggs. The judge pursues his friend.

At first he engages in more earwigging with the attorney for the plaintiff in the Jones Case. He then says he is going to recuse himself and tells his other earwigging partners. This was before he became a government agent. Once an agent, he says he is not going to recuse himself from the case. Obvioulsy, he wanted to pursue his earwigging of his friend, his rule violating earwigging to trap his friend and perhaps his friend’s friend.

Weeks go by. During that period, the judge’s friend engages in actions which are entirely irrational regarding the creation of a law firm with a non-lawyer…The judge knows all about his friend’s meltdown and he knows of the content of the letters. At this point he then begins to push a scheme whereby he convinces his friend that he is in desperate financial trouble. He needs money and he needs it fast. The young friend goes along and agrees to help. He is now trapped. Aware that another lawyer in the state was just sentenced to 11 years in prison for alleged wrongdoing with a judge he agrees to become involved in the judge’s scheme to trap his friend.

While Pynchon concludes, “it will be a sad day for the citizens of Mississippi…if Zach Scruggs prevails”, Nashville attorney James Haltom notes in Earwigging the Chancellor Prohibited: A Violation of Legal Ethics ( Mississippi Law Review, March 2010):

Rule 8.3 of the Mississippi Rules of Professional Conduct requires that if an attorney knows of a legal ethics violation, that attorney must report that violation to the state bar…the punishment for earwigging under the state trial court rules is contempt, a relative minor punishment for a violation of legal ethics…

Lackey, admittedly uncertain of Balducci’s intent, had the option of citing Balducci for contempt and reporting the “earwigging” to the bar or “making a federal case” of it.  He chose the latter for reasons that have never been fully explained and, as Eugster points out:

“…what the judge and the federal government have done is extremely troublesome. We cannot have a system of justice due the respect and trust of the people if this sort of conduct is allowed.

That Mississippi is the only state that prohibits “earwigging” does not make the state a “whiggocracie” but, if we are to have a “system of justice due the respect and trust of the people”,  Zach’s Motion must be decided under applicable law – and it will truly be “a sad day for the citizens of Mississippi” if anything else is considered.

7 thoughts on “Flipping the wig on “whiggocracies””

  1. Well done post and articles by both Vickie Pynchon and Eugster. The ethical lapse that is earwigging should cost young Scruggs his law license IMHO.


  2. Thanks, Sop. Two points to consider, however, are that (1) Zach’s “crime” was not reporting the earwigging and (2) that, for those who actually do “earwig”, according to the Law Journal article, “The general penalty for earwigging is contempt of court; the penalty for contempt shall not exceed imprisonment for longer than thirty days and a one hundred dollar fine for each offense.”

  3. Aw, come on Sop! Really?! If the general penalty for earwigging is contempt of court, then the failure to report it should be to lose his license?

  4. Belle the policyholder lawyers we deal with make a point to emphasize how dimly they view Zach Scruggs’ role in the Lackey affair. As a group they have been deamonized along with all their peers on the consumer side for years by big business groups and operators like the Scruggses enable the big business loving folks to have plenty of fodder with which to make that point.

    My experience has been quite the opposite with the lawyers with whom Nowdy and I have gotten to know but that story does not have a chance as long as there are people out there like the Scruggs taking liberties with the code of ethics and the law.

    The fact is there are plenty of highly unethical lawyers guilty of the same stuff that skate (see our Tom Porteous impeachment coverage) and therein lies the bigger story IMHO. We’ll never get traction there unless editorially we hold all lawyers to the same standard and I’m not much on double standards to begin with.

    The propaganda line about Slabbed is that we are a pro Scruggs blog when in fact we are for the rule of law. We’re equal opportunity in reality and there are still some sleazy operators out there like Magnum JD that really have no place in a clean court system. Such is the reason the passage of time generally treats our posts very kindly.

    I don’t think any of the lawyers that read us want to pile on top of the misfortune that has visited the Scruggs family. But that does not change the fact that very few ever want to see them practice law again. At the end of the day as a CPA that belongs to a profession with a strict code of ethics I relate to what I’m being told that way. One difference is that CPAs, unlike lawyers, rarely get their licenses back once they are forfeited so I guess being hard core on Zach Scruggs’ law license comes naturally.


  5. “The propaganda line about Slabbed is that we are a pro Scruggs blog when in fact we are for the rule of law.”

    I understand how offensive “earwigging” is to attorneys who follow the Rules to the letter.

    It offends me, too – and it offends me even more that every time I read a decision that doesn’t make sense, I wonder if the deck was stacked against the losing party.

    IMO, change begins with applying the law and with judges who will speak out (re: Judge Vance’s public outrage at discovering an attorney contacted her husband about a case). More need to step forward and shut the door on ex parte contact – with judges, their families and/or staff – expose the subtle but serial earwiggers who play the system with their personal relationships and/or professional positions and impose the penalties established in Rules and/or Law.

    That said, Sop, if we are faithful to the “rule of law”, I see no justification for calling for a greater penalty for Zach’s “ethical lapse” than provided under the Rules of the Court, noting there was no applicable Law.

  6. Thank you, Nowdy. That is the sole reason that Zach pled guilty because the feds falsely mixing up these two cases and getting Zach involved in something he didn’t have anything to do with, is prosecutorial misconduct. And we talk about, “the rule of law?” Where was the rule of law when the prosecutors lied in court?

  7. And from Eudora Welty, the “pearl” of Mississippi writers, a quote apropos of the discussion:

    “Integrity can be neither lost nor concealed nor faked nor quenched nor artificially come by nor outlived, nor, I believe, in the long run, denied.”

    Bonne nuit

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