Here we go! Patsy Brumfield, who isn’t noise, had a short story up on NEMS360.com:
Zach Scruggs wants Senior U.S. District Judge Neal Biggers Jr. to reconsidering allowing him to seek new evidence related to his 2008 conviction.
The new evidence, Scruggs insists in a motion filed Wednesday, did not exist when he pleaded guilty and went to prison for knowing about an illegal conversation between then-New Albany attorney Timothy Balducci and Circuit Judge Henry Lackey.
This text from the Motion is significant and, IMO, should be read before the “lacunae” (a gap or place where something is missing, e.g. in a line of argument) or the discussion of “the new evidence that did not exist” when Zach entered his plea: (The Motion with all Exhibits, 119-pages total, follows below in Scribd format.)
Even with these lacunae, it bears emphasis that after all the facts were put on the table, it became clear to the Government that Petitioner was innocent of any involvement in bribery, and those charges were voluntarily dismissed. At that time, the Government repeatedly represented to this Court orally and in the Factual Basis that “all the facts and circumstances” of this petitioner’s conduct amounted to mere earwigging, not bribery. Plea Hearing Tr. 3/21/208 at 8 (Mr. Sanders), Sentencing Hearing Tr., 7/2/08 at 5 (Mr. Dawson). The purpose of much of the Petitioner’s propounded discovery is to discern what factual basis exists for the Government now to say the opposite.
Amazingly, it was in reading prosecutor Tom Dawson’s book that Zach learned of “new evidence” giving cause to open Discovery. (I wonder if Judge Biggers learned something new, too, assuming he read the book)
Langston and Farese made a desperate pitch for immunity, offering to testify against Scruggs in the Delaughter case. They argued that the value of Langston’s testimony would cause Scruggs’s collapse in both cases, resulting in guilty pleas. The specter of Scruggs’s own lawyer testifying against him would be insurmountable. (Petition Exh. C., at 188.)
So, what is the “new evidence”?
Only with the publication of these facts in 2009 did Petitioner Zachary Scruggs learn that the Government induced his own attorney to procure a witness that the Government assured the Court and Petitioner would testify against Zachary Scruggs, a witness that created an “insurmountable” challenge to his defense, and undermined his rights to effective counsel and fair trial. The purpose of the requested discovery is to probe those murky depths, to determine whether the Government affirms or denies those facts provided by Mr. Dawson. If the Government now concedes that Mr. Dawson’s account is true, then these questions can be dispatched quite quickly.
Given that the Government’s secrecy — about Mr. Langston’s true testimony and about Mr. Farese’s dual representation — is the very problem underlying the Petition, the Court’s order denying discovery creates a Catch-22. Petitioner alleges that he was prejudiced by secret information and secret negotiations, but the Court says he cannot discover the predicate facts about those secrets, because he previously had the opportunity to undertake discovery about those secrets when they were still secret. The discovery allowed in §2255 cases is designed precisely to resolve this sort of problem. See Conaway v. Polk, 453 F.3d 567, 584 (4th Cir., 2006) (describing this as “a classic catch-22”).
The Motion makes for interesting reading as does Keker’s Affidavit, although I expect some will use it as “noise” to create a distraction from the the larger issue summarized in the Conclusions:<
This Court should welcome civil discovery as a mechanism “to narrow and clarify the basic issues between the parties, and as a device for ascertaining the facts[.]” Hickman v. Taylor, 29 U.S. 495, 501 (1947). The Court will recall that Petitioner has never conceded that there was a bribery in this case, much less that he participated in a bribery. In contrast, the Petitioner’s earwigging plea was exceedingly simple – he knew that Tim Balducci had an ex parte conversation with Judge Lackey. See Factual Basis, D.E. 190. This Court has provided a hearing that will allow Petitioner to address his actual innocence of any bribery related crime.
Narrowing of the issues or discovery of predicate facts will serve the Court by focusing the hearing on contested issues. Respectfully, if there is a case in which it is necessary “to narrow and clarify the basic issues between the parties, and [to] ascertain the facts” in advance of a hearing, this would be it. It will also provide Petitioner the opportunity for the process that isdue him. After all, the Government has shown itself to be – to put it gently – unreliable in its representations to the Court in this case. Petitioner can only refute what the Government says by access to the Government’s sources. (emphasis added)
This Court remains the guardian of justice. Justice depends on the truth.
Here’s the Motion with all exhibits attached. Be sure to read the footnotes, particularly if you’re an attorney.
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