Maybe the Rule of Law will also sing “in perfect harmony” after the Court considers the trio of documents filed in USA v Scruggs this morning. Patsy Brumfield reports on one – Petitioner’s Memorandum In Reply to the Government’s Response to Motion of David Zachary Scruggs for Depositions (linked here and in Scribd’ format below) – in Scruggs offers more reasons to question key players under oath.
Scruggs’ new filing insists that advance testimony will help sort out issues for the court, especially from former Circuit Judge Henry Lackey, ex-Booneville attorney Joey Langston and FBI Agent William Dulaney…In today’s motion, which responds to a government motion last week, Scruggs says prosecutors “cannot substitute (their) spin for evidence developed under the crucible of cross-examination of witnesses under oath.
Since the two other briefs filed today lend context to the Scruggs’ Reply, SLABBED looks to these before introducing the arguments set forth in the Reply.
In Petitioner’s Bench Memorandum Regarding Procedural Default (linked here and in Scribd’ format below) Scruggs’ attorney, former Missouri Supreme Court Justice Edward “Chip” Robertson, notes “the Government seems to be laboring under confusion regarding this Court’s jurisdiction to hear the entirety of the issues raised in the Section 2255 Petition” before clearing the confusion with citations of applicable law: (emphasis added)
…the Government has repeatedly attempted to narrow the scope of the Court-ordered hearing, most recently to avoid discovery about the truth behind the three issues raised in the Petition. In case there is any doubt about the proper scope of the hearing and the proper scope of necessary and appropriate discovery, Petitioner submits this bench memorandum concisely explaining the law of procedural default.
This Court has three different and independent bases for jurisdiction over this Petition.
Regarding the first – “a defendant can challenge his conviction [with a] showing [of] both ‘cause’ for his procedural default, and ‘actual prejudice’ resulting from the error” – Robertson points out the “Petitioner alleges that the Government violated his constitutional right to effective counsel and coerced his plea of guilty through material misrepresentations to him and the Court”.
The Government has said that Petitioner’s “allegations about government misconduct and perceived conflicts of interest … are actually not justiciable at this juncture,” until actual innocence is first proven. D.E. 320 at 2. The Government’s assertion is unsupported in law or logic. This is because it confuses two distinct avenues through procedural default issues. As the Fifth Circuit and the Supreme Court have repeatedly said, even aside from actual innocence, Petitioner may proceed with a claim of prosecutorial misconduct if he can show “both ‘cause’ for his procedural default, and ‘actual prejudice’ resulting from the error”.
The ‘cause’ for Petitioner not raising these issues prior to his plea is that the Government was concealing its wrongdoing until 2009 (well after the plea and after Petitioner had completed his actual prison time), when a former prosecutor published a book and 2010 (when a former prosecutor filed an affidavit in a bar proceeding). The Petitioner could not have known of these concealments until they were publicly aired. See U.S. v. Guerra, 94 F3d 989, 993 (5th Cir., 1996) (explaining that the ‘cause’ standard requires “some objective factor external to the defense [which] prevented him from raising on direct appeal the claim he now advances”)
Robertson continues stating, “It bears emphasis that the ‘cause and prejudice’ standard is completely independent from the ‘actual innocence’ standard…” and cites a 2010 decision by the chief judge of ND Mississippi’s federal court as an authority:
Judge Mills granted relief on the petition without making any finding of actual innocence. Instead, Judge Mills properly described the two different bases for avoiding procedural default (cause and prejudice versus or actual innocence), recognizing that they are alternatively and independently available to defeat claims of procedural default.
In addressing the Government’s contention that Zach must prove “actual innocence”, Robertson advances an argument repeatedly made on SLABBED – …contrary to the Government’s naked assertion, the fact that Judge Lackey was not an agent for federal grant is properly before the Court because that means that Petitioner is “actually innocent” of the 18 U.S.C. § 666 crime alleged in the Indictment See Petition, D.E. 303 at 10-11 (discussing Whitfield v. U.S., 590 F.3d 325 (5th Cir., 2009)):
The analysis is the same for every other element of every other crime the Government charged. The Court will compare the proven conduct to the legal elements of the crime, because “to convict someone of a crime on the basis of conduct that does not constitute the crime offends the basic notions of justice and fair play embodied in the Constitution.” U.S. v. Briggs, 939 F.2d 222, 227-228 (5th Cir.1991).
Robertson goes on to argue “… this Petition is properly before the Court because the Court never had jurisdiction to accept a plea for misprision of felony, because the Information and Factual Basis did not allege an essential element of that federal crime – “an affirmative step to conceal the felony”:
…The Fifth Circuit has said, “the mere failure to report a felony is not sufficient to constitute a violation” of the misprision statute. U.S. v. Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977). This affirmative act must be “a separate act not necessary to the original conspiracy, but  an affirmative act of concealment of that conspiracy.” U.S. v. Davila, 698 F.2d 715, 720 (5th Cir., 1983). Yet, the Petitioner’s plea contained no such affirmative act, because Petitioner committed no such affirmative act.
He concludes with a well-deserved tip of the hat to Judge Biggers on a point the Government and commenters elsewhere have continually ignored:
This case involves three different problems that infect the Petitioner’s conviction, and each of these happens to travel on a distinct and independent avenue through or around the
problem of procedural default. It is quite clear that this Court has the jurisdiction to hear all issues raised by the Petitioner, just as it has stated its intention to do.
Robertson also filed a a two-page Response arguing against the Government’s claim of the confidential nature of former Scruggs’ attorney Tony Farese’s response to the Complaint Zach filed with the Bar. Petitioner’s Response Regarding Motion to Seal (linked here and in Scribd’ format below) points out:
The Government cites no authority in support of its Motion, and Petitioner is unaware of any authority requiring the Court to seal such a document or prohibiting public discussion of a bar complaint or a response thereto. Nor does the Government provide a request from the Mississippi Bar or Mr. Farese requesting such a sealing.
Nor has the Government explained what practical purpose would be served by sealing this document, after the Government’s own prosecutor has already written a book about this case, detailing Mr. Farese’s wrongdoing, and after the Government has made representations about its contents in a public court filing. D.E. 328, at 3-4. (emphasis added).
Interestingly, the Response adds, “Petitioner also intends to place before the Court the bar complaint, and the rebuttal thereto, so that the Court can have a complete record of those proceedings” before concluding with “All that said, Petitioner has no objection to narrow Order sealing Mr. Farese’s bar complaint response, provided the Order does not limit the parties or witnesses in referring to the bar materials, or quoting therefrom”.
Likewise, “with all that said”, SLABBED returns to Scruggs’ Reply (linked here and in Scribd’ format below) to the Government’s slight of hand Response to Petitioner’s Motion for Depositions and the arguments supporting the deposition of all those named in the Motion:
The Government’s response proves Petitioner’s point in two ways: First, it asks the Court to deny depositions because it (the Government) already knows what it thinks the evidence is and is not willing to allow the Petitioner to show that what the Government thinks it knows is simply not accurate… Second, the Government simply whistles past the properly pleaded and jurisdictionally sufficient pleadings that the Government’s misconduct prejudiced Petitioner in making his plea.
Given Petitioner’s burden, due process requires that Petitioner have the opportunity to prove his actual innocence by showing that all persons who could offer proof that Petitioner did not know of any payment to Judge Lackey be permitted to say so in the manner most efficient for the Court’s purposes. Thus the Government concedes that some people can testify, but not everyone who might have knowledge. Judge Lackey’s testimony is important to Petitioner’s claim of actual innocence. Well before Judge Lackey sought and Tim Balducci agreed to pay a bribe, Judge Lackey recused himself from considering Jones v. Scruggs. Only after a meeting with FBI Agent Delaney did Judge Lackey decide to do what is virtually unknown in judicial practice – unrecuse himself.
Since it was Judge Lackey and the Government who conceived the bribe and asked Mr. Balducci to pay it, Petitioner could not have planned the bribe or known of its planning. Whether there was any evidence that Judge Lackey or Agent Delaney knew or believed that Petitioner was a target of the bribery scheme hatched by the Government is part of the proof required of Petitioner. Further, if Mr. Balducci had said to Judge Lackey, “I talked to Zach and Zach explicitly said we’ll pay you $40,000,” that would be highly relevant. If, on the other hand, Mr. Balducci never said anything at all about Petitioner to Judge Lackey or Agent Delaney, that would be highly relevant too. The Government could remove this issue by stipulating that neither Judge Lackey nor Agent Delaney ever discusses Petitioner with anyone…
Agent Delaney is important for another reason. He handled Tim Balducci after Mr. Balducci was arrested and offered to help the Government “get” Dick Scruggs. He sent Tim Balducci into the Scruggs Law Firm on November 19, 2007, to obtain additional evidence against some or all of the persons who were ultimately indicted. The Government has provided no information about that meeting; the best source for that information is Agent Delaney. Though it is hard to believe that the FBI has no report on that issue, it is impossible to believe that Agent Delaney did not speak with Mr. Balducci after that event. Petitioner believes that if he was truthful, Balducci’s report to Delaney (oral or otherwise) was exculpatory. Agent Delaney knows. Petitioner is entitled to find out. It is not enough for the Government to deny; it is necessary for the Government to permit evidence on that issue. Due process requires no less.
Now to Joseph Langston. This is where the Government’s spin becomes dizzying. Mr. Langston’s testimony goes primarily to the Government misconduct averments. The Government cites Petitioner’s March 19, 2008, renewed motion in limine to exclude the 404(b) evidence. (Doc. 328, fn. 3). The March 19 motion must be read against the Government’s nowrevealed-as-false assertion to this Court that
“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.” Government Statement (Robert Norman) Hearing Tr., 2/21/2008 at 21:15:20 (emphasis added).
… the Government’s claim that Mr. Langston would testify that Petitioner was “fully aware” is much broader and fully implicative of Petitioner. It sweeps within its breadth all aspects of the case, including those matters to which Mr. Langston pled guilty. It cannot be brushed away with an affidavit that pretends there is no difference between being aware of a case and being “fully aware of what was going on.”
Nor does Mr. Norman’s affidavit account for the fact that his statement is completely at odds with Mr. Langston’s affidavit…It is also contrary to Mr. Farese’s statements at Mr. Langston’s sentencing hearing.
On December 16, 2008, Mr. Farese asked the Court to give Mr. Langston a lighter sentence because Mr. Langston’s efforts “produced guilty pleas in the first Scruggs matter.” The plural can only refer to the two defendants who were subject to the Court’s 404(b) ruling based on Mr. Langston’s reported testimony– Richard Scruggs and Petitioner.
At the same hearing Assistant United States Attorney Dawson stated that Mr. Langston’s cooperation was important to the resolution of the earlier cases. “To say that this [Langston’s cooperation] added evidentiary weight to the original case would be a tremendous understatement” and that “we believe that Mr. Langston’s decision to plead and cooperate was a significant factor in the resolution of Scruggs I.” Scruggs I involved the indictments of Richard Scruggs, Sidney Backstrom, Petitioner and others. But Langston’s testimony could only have gone to the cases against Richard Scruggs and Petitioner, as they were the only subjects of the Government’s 404(b) motion.
Given Petitioner’s burden, it is not enough that Mr. Norman asserts that there was no harm because he did not repeat the misrepresentation a second time. The proper course of action, if the Government had wanted to clear up the misrepresentation, would have been to file a notice of non-opposition to Petitioner’s renewed motion to exclude the 404(b) evidence after Richard Scruggs and Sidney Backstrom pled. That was the Government’s last chance to remedy its misrepresentation to the Court. Instead, the Government stood silent. Moreover, the Court must have believed what the Government said. The Court relied on it in three orders and departed from the Government’s sentencing recommendation…
The claim that the Government does not want to engage in discovery because of time and expense must be fully discounted. The Petitioner pleaded guilty to what is now determined to have never been a crime. He went to prison. That he now seeks to vindicate himself from the Government’s claims is a burden that falls on both the Government and the Petitioner. And the burden of due process is something the Government should fully embrace, not attempt to stifle.
Any assertion that there will be “protests and objections” in the depositions is a confession from the Government of what it plans to do, not what Petitioner intends…
Finally, the Government’s claim that there is “one issue before the Court that is justiciable and not time-barred: whether or not David Zachary Scruggs knew [or was a co-conspirator in a scheme] that money had actually been delivered to Circuit Judge Henry Lackey in connection with their scheme to corruptly influence him” is patently wrong. (Doc. 328, at 2, 8) It ignores the claims of prosecutorial misconduct. Further, this Court has three different and independent bases for jurisdiction over this Petition.
No summary can substitute for a full reading of the documents filed on behalf of Zach Scruggs today – and no one’s opinion about the case merits consideration in the absence of having read the legal arguments set forth by the former Chief Justice of the Missouri Supreme Court.
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